Monitoring “keystrokes” a privacy issue, or just good business practice?

Interested in monitoring your employees’ computer-related movements? Worried your employer might be watching “too closely” while you are sitting in front of your computer? In Brahmana v Lembo, N.D. Cal. May 20, 2009, one employee, one employer and a federal trial court in California are about to at least decide if monitoring down to the very keystroke violates privacy rights, or at least those rights under the Electronic Communications Privacy Act (ECPA). This law sets out the stipulations for the access, use, disclosure, interception and privacy protections of electronic communications.

The employee in the case alleged that his employer unlawfully monitored his computer keystrokes in order to obtain the password to his personal email account, and the employee bolstered this argument by alleging that the employer knew information that was never shared and could have only been known by reading his personal emails. According to the employee, his employer used monitoring tools such as local area network analyzers and key loggers to record his keystrokes when he entered his email password, in violation of the ECPA. The employer sought a dismissal of this claim

The Ninth Circuit Court noted that gaining access to stored electronic information does not violate the ECPA; however, the Act is implicated when electronic communications are “intercepted” during transmission. The court therefore reasoned that the employee’s allegations were “… sufficient to render plausible the claim that [the employee’s] communications were monitored in some way, but they do not specify whether the particular means of monitoring might monitor keystrokes that had actually affected interstate commerce,” as required by the statute. Because some means of the alleged monitoring may constitute a violation of federal law, the employee’s complaint was not dismissed.

As this case proceeds, the impact its final decision delivers will most certainly prove to have a powerful effect on both employer and employee. On the one hand, employees today often rely heavily on their workplace computer, and the Internet has proven to be both a valuable working tool, as well as an “escape” during the workday. On the other hand, while employers know a happy employee is a productive employee, “productivity” is always the key, and most employers want employees working, not surfing, and so the use of monitoring software seems to be one way to curb excessive Internet use.

Moving forward, the employer’s defense will provide an idea of what it did or did not do, and whether it actually monitored keystrokes and intercepted private information, and whether this was a violation of the ECPA. But a question that may not get posed, but is certainly on the minds of both employer and employee is: If this type of monitoring is legal, does an employer have carte blanche to monitor an employee’s computer use, and if so, how will that impact the workplace?