digy and Compuserve, and the term agent may or may not be defined to include employers who subscribe to or use their e-mail service. Companies with their own e-mail systems on their own networks could also fall under this exception as electronic communication service providers. Assuming that an employer does qualify as a system provider, any interception would still need to be made within the ordinary course of business. [18 U.S.C. 2511(2)(a)(i) (1994).] Previous case law in telephone call monitoring provides some "stare decisis" for monitoring of employee e-mail in the ordinary course of business. In both Watkins v. L.M. Berry & Co. [704 F.2d 577 (11th Cir. 1983).] and Briggs v. American Filter Co. [630 F.2d 414 (5th Cir. 1980).], the courts decided that if the employer had difficulty controlling personal use of business equipment, then a personal call could be intercepted in the ordinary course of business to determine its nature, but not its contents. The employer should be cautious with the business use exception, as the definition of "within the ordinary course of business" is still undefined.3.System ProvidersWhere employers provide their own company e-mail system there are two additional thoughts to support the non-relevance of the ECPA to them. The first theory is only available for employers with a system whose messages remain entirely intrastate, and is based on the ECPA's applicability being limited to interstate communications. Under this theory, an intracompany e-mail system, whose messages do not cross state lines and which is not connected to an interstate network, fails to fall under the definition of "electronic communications service," [18 U.S.C. 2510(15) (1994).] and falls outside the protection of the ECPA. The definition of electronic communications under the law only pertains to such communication that affects interstate or foreign commerce. However, the action could fall under the Interstate Commerce C...
