torage includes e-mail which has been temporarily stored following transmission, as well as e-mail which has been stored for backup protection. [18 U.S.C. 2510(17) (1994).] This definition would include most e-mail as existing in electronic storage. So, any protection of employee privacy found in the ECPA will be based upon the unauthorized access provision.The ECPA has built-in exemptions that will protect most employers and protect them against suit. These exemptions are: prior consent, business use, and system provider.1.Prior ConsentThe best protection against liability under the ECPA is when prior consent has been given for any interception or access of e-mail in electronic storage. Interception of electronic communication is expressly allowed by the ECPA when "one of the parties to the communication has given prior consent." [18 U.S.C. 2511(2)(d) (1994).] Also, access to stored electronic communication is allowed without liability when authorization has been given "by a user of that service with respect to a communication of or intended for that user." [18 U.S.C. 2701(c)(2) (1994).] An easy case to understand here is American Computer Trust Leasing v. Jack Farrell Implement Co. [763 F. Supp. 1473, 1495 (D. Minn. 1991)]. Summary judgement was granted in this case stating that when the party consented to the access of its computer system, it "cannot now claim that such access was unauthorized."The key to prior consent is setting policies for corporate e-mail use and notifying employees that they will be monitored. This policy should be corporate-wide and employees that use the system will be judged as giving implied consent upon reviewing the policies and agreeing to the fact that they have read and reviewed the policies. Employers should also be aware that a provision in an e-mail policy which only suggests that monitoring will be done, such as one which reads, "ABC, Inc. reserves the right to monitor all e-mail commun...
