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E-Commerce News
Right To Monitor Doesn't Allow Warrantless Email Search; Invalid Forum Selection Clause Can Still Compel Arbitration
January 16, 2007
RIGHT TO MONITOR DOESN'T ALLOW WARRANTLESS EMAIL SEARCHThe U.S. Court of Military Appeals (“YOU CAN’T HANDLE THE TRUTH” -- sorry I just always wanted to do that) recently upheld a service member’s right of privacy in selected e-mail messages. The court found that a logon message that alerted users to the government’s right to monitor did not permit searching through messages for law enforcement purposes.
The service member had pressing reasons to object to the use of the e-mail messages. She was a defendant in a criminal case, charged with unlawful drug use. Included in the government's evidence were a number of e-mail messages she had sent and received in which she expressed concern that her drug use would be detected by urinalysis and discussed steps she’d used to avoid detection. Government investigators acquired the messages without a search warrant, by directing the systems administrator to retrieve the e-mail messages from the defendant's account.
The defendant appealed her conviction. The question on appeal was the extent to which the defendant had an “objectively reasonable” privacy expectation in the messages.
The defendant made two arguments on this point. First, only she knew the password to her e-mail account. Second, she presented testimony from the system administrator that the practice in her workplace was to recognize a privacy interest.
Although the government argued that the password-protection served other government interests, such as securing the network from intruders, the appellate court found that fact did not diminish the employee’s privacy interest.
The appellate court was equally unimpressed with the argument that the system message, which appeared every time the defendant logged on to the network, removed her privacy expectation. According to the court, that message merely stated that the computer use would be monitored for network maintenance purposes. The message never indicated that the contents of e-mail messages could be examined by law enforcement.
Having found that defendant had an expectation of privacy, the court then found that the expectation was objectively reasonable. In its finding, the court essentially reiterated the facts. Defendant had a password known only to her, the practice in the office was to recognize employee privacy, and the logon message related only to monitoring for maintenance. Those factors created a privacy expectation that was clearly reasonable.
This case presents a few “general” lessons about “private” workplace e-mail (a little military joke there). First, as an employer, decide what you want to achieve with your e-mail use policy. Second, spell out the policy as completely and clearly as you possibly can. If you want to retain the right to review messages, say that! A little clarity upfront will save headaches down the road.
INVALID FORUM SELECTION CLAUSE CAN STILL COMPEL ARBITRATION
An eBay user living in Montana recently received good news and bad news in its battle to obtain home court advantage in litigation with eBay. The Montana Court rejected a provision in eBay’s user agreement that requires aggrieved users to either sue in the state of California, but it upheld a provision in the same section requiring arbitration of all disputes.
The plaintiff, Richard Rambler, brought a suit against eBay in Montana, contending that an online seller cheated him out of a pair of binoculars Rambler had purchased on the online auction service. eBay responded by filing a motion to compel arbitration. eBay relied on its agreement, which gives users the option of either litigating or arbitrating any dispute. But under the agreement’s terms, users who opt for litigation may only sue in California.
Rambler took an “all or nothing” position – that Montana’s public policy against enforcing forum selection clauses designating states other than Montana rendered the entire clause unenforceable--including the arbitration language.
The court wasn’t willing to go that far. It found that the mere fact that one portion of the clause was unenforceable did " not render the entirety of the clause or the agreement unenforceable." The court was also influenced by the fact that local Montana court rules would require Rambler to go through alternative dispute resolution anyway. The court granted eBay's motion to compel arbitration.
In addition to dealing with the question of partial enforceability, the court considered a number of other challenges that Rambler asserted. It found that Rambler’s failure to recall agreeing to the terms did not render the terms unenforceable. The court’s conclusion was bolstered by the fact that Rambler’s underlying complaint against eBay – that it failed to honor the terms of its purchase protection agreement – was itself governed by the user agreement. The court was unwilling to allow Rambler to pick and choose among the terms of the user agreement – enforcing those he liked and avoiding those he didn’t.
Terms and conditions – at least those not barred by public policy concerns – will more than likely be upheld. It might be worth wading through them if you have any concern. Once you use a service such as eBay, in most instances, you will be held to the stipulated terms and conditions.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.