ication," may not operate to create implied consent.2.Business Use ExemptionEmployers may use the business use exemption for interceptions made within the ordinary course of business. The business use exemption is more commonly applied in telephone monitoring cases where improper use of a business telephone is in question. Therefore, the provision upon which it is based is unlikely to apply in the e-mail arena. The definition of "intercept" in the ECPA excludes interceptions captured by "telephone or telegraph instrument, equipment, or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication services...being used by the subscriber or user in the ordinary course of business." [18 U.S.C. 2510(5)(a)(i) (1994).] Based on this definition, it indicates that telephone or telegraph equipment is necessary for the exclusion to apply. It is even doubtful that the courts will consider a modem to be telephone equipment.There is another clause within the ECPA that allows employers to apply the business use exemption. Section 2511(2)(a)(i) states:It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire of electronic communication service, whose facilities are used in the transmission of a wire of electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. [18 U.S.C. 2511(2)(a)(i) (1994).]For this exemption to apply, the employer would have to be classified as a system provider or an agent of a system provider. Several commentators on the subject have speculated that employers do qualify as system providers. The term provider would likely include public email networks, such as Pro...
