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Employers and vendors of surveillance software are it seems, resistant to the idea of a Private Member's Bill to outlaw email “snooping” in the workplace.

One argument used in defence of the right to intercept private correspondence in the workplace, is that email is different to more conventional forms of communication, in that it contains a header with the company’s domain name and frequently other details in the body of the message. Ipso Facto, this is company property and the company is indirectly responsible for its content and might be held liable if that content is later shown to be offensive or illegal.

Without doubt, the question of employer liability has to be clearly resolved and the Norwich Union case illustrated the problems associated with defamation but interception is not a solution and in most respects, given the sheer volume of email traffic, is an impossibility, as after all, reading someone’s email will only tell you what has happened or simply demonstrate a pattern of behaviour.

The philosopher, Alfred North Whitehead, once said that “For any argument, the opposite can be maintained, regardless of logical error or factual mistake”, so let’s try a couple of examples to judge whether the case for the right to trawl other people’s email in the workplace, holds water.

·The company gives you a mobile phone. Does it have the right to intercept and listen-in on your conversations or your text messages?
·You use company letterhead to write to a third-party. Is the employer entitled to remove the letter from the post room and read it?
·You are on the company network but are corresponding via your own Hotmail account or Instant Messenger. Can the company legally monitor this traffic?

The last one of these represents an interesting grey area but in general, if the answer is ‘No’ in all three examples and is supported by existing legislation, then you have to ask where the logical justification might for employers establishing their own equivalent of GCHQ?

At the very best, what employers should aim for is something resembling a watered down RIP (Regulation of Investigatory Powers) Act. In other words, a company should be entitled to monitor network traffic and record where that traffic from individual IP addresses is going, outside of the firewall. It should also have the right to place a Proxy Server behind the firewall and filter or prevent access to inappropriate sites, like Ogrish.com or SexTracker.com as examples. In addition, as long as a written content security policy is in place and is appended to an employee’s contract, any company should be relatively safe from the liability concerns associated with confidentiality and inappropriate content involving electronic mail.

On a personal note, I believe it’s time we drew a line in the sand and stopped the insidious spread of the surveillance society, what Britain does best, going any further. If the right to read email is protected in law, then one has to ask what comes next and I have to agree with MP Michael Fabricant, that now is as good a time as any to say no to snooping.




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