ications, without the employee's consent. However, employersshould not rely on this exception, because it might not apply in allcases, such as to incoming (as opposed to internal e-mail) if the e-mailservice is provided by a common carrier (e.g., America Online or MCImail, which are not provided by the employer).Under the third exception, courts will analyze whether the content ofthe interception was business or personal and allow the interception ofonly business-content communications.State laws -State tort laws are often viewed as the primary sources of protectionfor privacy of electronic communications. The most common tort thatwould apply is the tort of invasion of privacy. This tort occurs where"one who intentionally intrudes, physically or otherwise, upon thesolitude or seclusion of another or his private affairs or concerns, issubject to liability to the other for invasion of his privacy, if theintrusion would be highly offensive to a reasonable person."This tort does not require that personal information be actuallyacquired, disclosed or used. However, the intrusion must be intentionaland highly offensive to a reasonable person. Additionally, there must bea reasonable expectation of privacy by the employee.Employees often believe that their communications are private becausethey have a password which they can select and change independently orbecause they are communicating through outside common carriers. Caseshave often turned upon whether this belief was reasonable given the factthat the employer had the ability all along to access the files, thoughthe employees were not aware of this. In determining the outcome, courtswill weigh the reasonableness of the employee's expectation of privacyagainst the business interest of the employer in monitoring thecommunication. However, it is important to emphasize that in the finalanalysis courts have traditionally held that legitimate businessinterests permit employers to intercept commun...
