Employer’s Access of Private E-Mail Account Yields Key Damages Ruling
Wednesday, March 25th, 2009The notion of workplace privacy is one that sounds academically interesting, but in reality generates very little in the way of tangible rights. My partner, Ross Molho, likes to opine that privacy extends to purses and bathrooms, and not much more. And he is right.
Though with the advent of the digital workplace, we have to revise our opinion just a bit, and that has to do with access to private e-mail accounts.
The Fourth Circuit recently ruled on what can only be described as a bizarre employment dispute between Bonnie Van Alstyne and her former employer, Electronic Scriptorium (ESL). Van Alstyne worked for ESL for just over a year, having been hired by ESL’s president, Ed Leonard. Her situation took almost an immediate turn for the worse. Van Alstyne claimed Leonard made improper sexual advances towards her; she was later fired.
A series of lawsuits – three, to be precise – erupted. The most interesting, legally and perhaps factually, concerned Leonard’s access of Van Alstyne’s America Online (AOL) e-mail account. While ESL was pursuing a lawsuit against Van Alstyne, ESL’s lawyer questioned her during a deposition and used several e-mails as exhibits. Van Alstyne suspected the messages were taken from her AOL account (which she used sometimes at work), and not her company-provided account.
Leonard later admitted that he did in fact access Van Alstyne’s personal account after she left the company, first contending that he did so just a few times (as presented, oddly enough, by his own counsel during Van Alstyne’s deposition). As the appellate court noted, Leonard’s statements “were not entirely true. Indeed, Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locals as diverse as London, Paris, and Hong Kong.”
Van Alstyne then instituted another lawsuit under the Stored Communications Act, 18 U.S.C. 2707, which though criminal in nature allows for a private civil cause of action when someone impermissibly and without authorization accesses a facility through which an electronic communication service is provided. It seems patently obvious Leonard’s conduct gave Van Alstyne an almost airtight case.
Damages, however, proved to be a tougher question for the court. At trial, Leonard and ESL were hit for $175,000 in “statutory damages,” along with $75,000 in punitive damages. Van Alstyne also recovered nearly $150,000 in attorneys’ fees and costs pursuant to the SCA. The appellate court reviewed the basis for these awards.
Van Alstyne abandoned her mental anguish claim for damages and elected to seek only statutory damages. However, the Fourth Circuit read the plain textual language of the SCA and concluded Van Alstyne had to prove actual damages as a prerequisite to statutory damages (which were available in the sum of $1,000 per violation). Since she failed to do so, her statutory damages award was vacated.
However, the Fourth Circuit agreed with Van Alstyne that the punitive damages award could stand. The SCA did not condition an award of punitive damages on recovery of actual damages. This runs contrary to the common-law default rule. The court also vacated the fee-shifting award to take into account Van Alstyne’s lack of success in proving actual damages.
Given the tortured, and clearly acrimonious, history between Leonard and Van Alstyne, it seems obvious the latter made a tactical decision to keep certain private matters pertaining to mental anguish out of the trial proceedings. This was a calculated risk on her part and ultimately doomed her chances of recovering actual damages. However, had Van Alstyne proven any degree of emotional distress at trial, the damages award clearly would have withstood appellate scrutiny.
Though with the advent of the digital workplace, we have to revise our opinion just a bit, and that has to do with access to private e-mail accounts.
The Fourth Circuit recently ruled on what can only be described as a bizarre employment dispute between Bonnie Van Alstyne and her former employer, Electronic Scriptorium (ESL). Van Alstyne worked for ESL for just over a year, having been hired by ESL’s president, Ed Leonard. Her situation took almost an immediate turn for the worse. Van Alstyne claimed Leonard made improper sexual advances towards her; she was later fired.
A series of lawsuits – three, to be precise – erupted. The most interesting, legally and perhaps factually, concerned Leonard’s access of Van Alstyne’s America Online (AOL) e-mail account. While ESL was pursuing a lawsuit against Van Alstyne, ESL’s lawyer questioned her during a deposition and used several e-mails as exhibits. Van Alstyne suspected the messages were taken from her AOL account (which she used sometimes at work), and not her company-provided account.
Leonard later admitted that he did in fact access Van Alstyne’s personal account after she left the company, first contending that he did so just a few times (as presented, oddly enough, by his own counsel during Van Alstyne’s deposition). As the appellate court noted, Leonard’s statements “were not entirely true. Indeed, Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locals as diverse as London, Paris, and Hong Kong.”
Van Alstyne then instituted another lawsuit under the Stored Communications Act, 18 U.S.C. 2707, which though criminal in nature allows for a private civil cause of action when someone impermissibly and without authorization accesses a facility through which an electronic communication service is provided. It seems patently obvious Leonard’s conduct gave Van Alstyne an almost airtight case.
Damages, however, proved to be a tougher question for the court. At trial, Leonard and ESL were hit for $175,000 in “statutory damages,” along with $75,000 in punitive damages. Van Alstyne also recovered nearly $150,000 in attorneys’ fees and costs pursuant to the SCA. The appellate court reviewed the basis for these awards.
Van Alstyne abandoned her mental anguish claim for damages and elected to seek only statutory damages. However, the Fourth Circuit read the plain textual language of the SCA and concluded Van Alstyne had to prove actual damages as a prerequisite to statutory damages (which were available in the sum of $1,000 per violation). Since she failed to do so, her statutory damages award was vacated.
However, the Fourth Circuit agreed with Van Alstyne that the punitive damages award could stand. The SCA did not condition an award of punitive damages on recovery of actual damages. This runs contrary to the common-law default rule. The court also vacated the fee-shifting award to take into account Van Alstyne’s lack of success in proving actual damages.
Given the tortured, and clearly acrimonious, history between Leonard and Van Alstyne, it seems obvious the latter made a tactical decision to keep certain private matters pertaining to mental anguish out of the trial proceedings. This was a calculated risk on her part and ultimately doomed her chances of recovering actual damages. However, had Van Alstyne proven any degree of emotional distress at trial, the damages award clearly would have withstood appellate scrutiny.
