Volume 73, Number 6

December 1998

You’ve Got Mail! (And the Government Knows It): Applying the Fourth Amendment to Workplace E-Mail Monitoring

Scott A. Sundstrom

Whether, and to what extent, the Fourth Amendment might limit e-mail monitoring in government workplaces is an open question. Currently there is no caselaw directly on point. This Note argues that the Fourth Amendment should limit the government’s ability to monitor the e-mail of its employees. Part I reviews basic Fourth Amendment principles and then briefly examines alternate sources of privacy protections. That Part will show that these legal remedies are inadequate to protect government employees from intrusive e-mail monitoring in the workplace. Part II of this Note argues that the Fourth Amendment, which has been held to protect individuals from a variety of unreasonable government intrusions, could also apply to searches and seizures of e-mail in general, and workplace e-mail in particular. Part III then proposes an appropriate Fourth Amendment standard for government workplace e-mail monitoring. Beginning with the Supreme Court decision in O’Connor v. Ortega , Part III applies the federal case law involving workplace searches of government employees to the specific context of e-mail monitoring. This Note concludes that workplace e-mail monitoring is unreasonable where there is no special need justifying the types of suspicionless searches monitoring represents. Absent a special need, individualized suspicion should be necessary in order to justify monitoring employees’ e-mail.