S. Rep. No. 99-541 (1986) Hearing on S. 1667 Before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary, 99th Congress 42 (1986)(statement of Senator Patrick Leahy (D-Vermont)).] This uncertainty of Congress has left the door open has left the door open for courts to create a narrow definition of system providers, which could only include public, commercial providers such as America On-line, Prodigy, and Compuserve. Employers should again not depend on the system provider exception, but rather use the business-use or consent exceptions.IV.Case DiscussionIn examining case law concerning e-mail privacy, there are a few standard benchmark cases. Most of these cases come from California and it is no coincidence that this law should develop in what is considered a technological center of the United States. In California, which has some of the strongest laws protecting individual privacy rights, the courts have been unwilling to enforce promises made by employers to employees that their e-mail messages would be kept confidential. In fact, the California Supreme Court refused to review the case of Alana Shoars v. Epson America Incorporated. In that case Ms. Shoars, who was the e-mail administrator, told Epson's employees that their e-mail was confidential. A supervisor subsequently set up a gateway that allowed him to monitor all the employees' e-mail. When Ms. Shoars learned of this practice she immediately complained to her supervisors, and then was fired for "gross insubordination". The judges in Ms. Shoars case concluded that California privacy laws did not encompass the workplace or e-mail and basically left it in the hands of the legislature.The same result was found in Flanagan v. Epson. [Sup. Ct. Cal., Jan. 4, 1991] In this case, an employee brought a class action lawsuit alleging that Epson invaded the employee's privacy by circumventing their passwords and reading their e-mail message...
