for a government entity, acting without a properwarrant. The ECPA is mostly concerned with the unauthorized access byemployees or corporate competitors trying to find out valuableinformation. However, while there is no specific prohibition in the ECPAfor an employer to monitor the e-mail of employees, the ECPA does notspecifically exempt employers.The ECPA has several exceptions to the application of the prohibition ofinterception of electronic communications. The three most relevant tothe workplace are (1) where one party consents, (2) where the providerof the communication service can monitor communications, and (3) wherethe monitoring is done in the ordinary course of business.The first exception, consent, can be implied or actual. Several courtshave placed a fairly high standard for establishing implied consent. Forexample one court held that "knowledge of the capability of monitoringalone cannot be considered implied consent." Accordingly, for anemployer to ensure the presence of actual consent, it should prepare,with advice of counsel, a carefully worded e-mail Policy Statement whichexplains the scope of employer monitoring. This Policy Statement shouldbe signed by the employees. One example of how this Policy Statementneeds to be carefully written is that if it states that personalcommunications will be monitored only to determine whether there isbusiness content in the communications, then this would probably notamount to consent to review the full text of personal communications.Additionally, notice that communications might be monitored may have asignificantly different legal affect than a notice stating thatcommunications will be monitored.The second exemption is that the ECPA exempts from liability the personor entity providing the communication service. Where this service isprovided by the employer, the ECPA has been interpreted as permittingthe employers broad discretion to read and disclose the contents of e-mail commun...
