The President of IAFF Local 1397, Falmouth Firefighters, filed a lawsuit against the town of Falmouth and former town manager Robert L. Whritenour Jr. alleging that the town illegally accessed his department e-mail account. Russell R. Ferreira claims the town violated his expectation of privacy by accessing, copying and forwarding his emails to third parties.
The town denies Ferreira had an expectation of privacy in his emails, and claims the emails were accessed as part of a police investigation into complaints by a town employee who was being harassed. Capenews.net is reporting that the town’s employee handbook addresses privacy issues and tells employees their emails are not confidential.
Ferreira counters that the union never agreed to the terms of the handbook, and that union members are governed by the terms of the collective bargaining agreement. He also alleges that the fire chief has taken the position that all emails are confidential.
The case serves as a reminder about the importance of a fire department having a formal policy to address computer, internet and electronic communications AS WELL AS THE NEED to obtain employee consent to store, copy and access electronic communications. Fire departments that simply adopt computer policies (or incorporate them through employee handbooks) may find that they lack the necessary consent required by the Electronic Communications Privacy Act. Of course, not having a policy makes it impossible to lawfully access employee emails.
And one more thing…. the ECPA has a pesky little provision that prohibits the use of illegally intercepted electronic communications in any proceeding. That would include discipline of a firefighter. Best advice: have a well written computer, internet and electronic communications policy and have every employee consent to its terms as a condition of using the computer system.