Sandy,
>From what you have said there is a law to cover this problem - however this
is a US law and i may be wrong but Dan's company is Spanish ( given that
they owe him pesatas and the site is Barcelona.com) So where does that leave
Dan and his problem - or for that matter the rest of us that reside outside
of the USA.
Regards
Les in the UK.
----- Original Message -----
From: "Sanford Whiteman" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, June 18, 2001 6:51 AM
Subject: Re[2]: [IMail Forum] A tricky moral problem
> An interesting perspective, Andy. I was describing, however, both the
> spirit *and* the letter of the ECPA, as supported by original Senate
> hearings on the bill and the subsequent interpretation of numerous Federal
> courts. You are describing, perhaps, the spirit of a law you *wish* to
> exist, or a personal "moral law" centered on your prerogatives as an
> employer, either of which, by definition, would be "so much easier" for
you
> to observe.
>
> You are obviously welcome to such opinions, and I actually don't disagree
> with your general conclusion that non-productive use of business assets is
> questionable. But I must say I'm happy that there are laws on the books
> that protect employees that do not have the economic privilege to "go get
> [their] own," in your words, from employers who take supremem advantage of
> their employees, then plead that their employees have always had "job
> mobility." Luckily for anyone who works for such employers, the
Americans
> with Disabilities Act, the Family and Medical Leave Act, and the Civil
> Rights Acts, to name just a few, are on the books rather than
> employer-centric alternatives.
>
> Sandy
>
> P.S. Ironically, if you read my message again, you'd probably find that
> your views regarding "policy" coincide quite well with the intent of the
> ECPA. As I mentioned early on, the Consent Exception states that, in
> essence, if you've published a detailed privacy policy and made sure that
> everyone's signed it, you can use any surveillance methods noted in said
> document, under circumstances noted in said document. It's surveillance
> without prior notice which is proscribed. In other words, as long as your
> policies make it from your mind to paper, you can get away with a lot--but
> simple gut feelings about employers' rights won't stand up in court. This
> is why employers need to--yes--hire a lawyer and draw up a policy from the
> get-go that indemnifies them from charges of unwarned intrusion and still
> lets them poke their noses in as necessary to keep their businesses
running
> securely and efficiently.
>
> At 11:54 PM 6/17/2001, you wrote:
> >Hmm...this is exactley the problems with law and lawyers in general...
> >
> >Therein is the difference between the "spirit" of the law and the
> >"letter" law.
> >
> >Ok, so now we know the "letter" of the law..
> >
> >The "spirit" is so much easier. I am the company, and while you are
> >using my equipment while you are at work, it is up to me how that
> >equipment will be used.
> >
> >If it is a company truck....If I say no stop offs at Arby's, then there
> >are no stop offs at Arby....If it is my email system, and I say no
> >personal use, then that's how it is. If you don't like it, get a job
> >somewhere else.
> >
> >This is still a *free* country (or is it?) and what goes on in my
> >company is up to me. I am *paying* you to do things *my* way. If you
> >don't like that, you can grin and bear it, work for someone else or
> >start your own company and then *you* can dictate policy.
> >
> >There...that is the "spirit" of the law....for you to just assume you
> >can take the company delivery truck and do whatever you want with it is
> >absurd... Whatever happened to a little horse sense?
> >
> >Anybody that is using the company *anything* for *anything* but the
> >betterment of the company *deserves* to get fired or whatever....I don't
> >have much sympathy for people that get in trouble for abusing a
> >system...as if they don't already know better...
> >
> >If you want to have a delivery truck to do whatever you want...go get
your
> >own...don't assume liberty with mine... Stick to business while at work
> >and there are no problems. We are so hung up on the rights of the
> >employee...what about my rights as the employer to expect you to be
> >doing what I am paying you to do...like work? Seems to me that you are a
> >common thief if you are taking my paycheck, but are wasting company time
> >or resources for your own petty BS...
> >
> >I hope this adds a little perspective to this *not so tricky* moral
> >question.... This person deserves to be blown is as what they were
> >doing was immoral and unethical....let the lawyers fight out the legal
> >stuff.
> >
> >Thanks, andyb
> >[EMAIL PROTECTED]
> >
> >Sunday, June 17, 2001, 8:55:49 PM, you wrote:
> >
> >SW> All,
> >
> >SW> I know the original poster seems to have moved on, but here is a
legal
> >SW> mini-backgrounder from a law student who's done assistantships on
several
> >SW> IP cases involving e-mail privacy (I think some responders were
sorely
> >SW> underinformed about the complexity of an employer's "ownership" of
data
> >SW> generated by and stored on their systems--it's not so simple):
> >
> >SW> E-mail communications is governed by the Electronic Communications
> >Privacy
> >SW> Act (ECPA) of 1986. ECPA explicitly prohibits (like a trailing "deny
> >all"
> >SW> in an ACL) the real-time interception, off-line access, and
subsequent
> >SW> disclosure of e-mail, with the following exceptions:
> >
> >SW> - CONSENT EXCEPTION (CE): This exception states that when a single
party
> >SW> involved in said communications has consented to the interception or
> >access
> >SW> before it occurs, the prohibition does not apply. The provider of
the
> >SW> service itself (IT dept, ISP, telco) does NOT constitute a party
under
> >the
> >SW> law, BUT both ends of the convo, sender and receiver, are parties
whose
> >SW> consent makes the whole convo eavesdroppable. You can think about
many
> >SW> consequences of single-party consent: for instance, if someone is
sending
> >SW> corporate secrets to someone at another company, but the receiving
> >SW> company's management is secretly cooperating with the sender's
management
> >SW> in order to nab the sender (maybe a good-faith gesture!), the comms
> >may be
> >SW> monitored without much of a legal hangup. The CE directly applies to
> >SW> published and agreed-upon (through clicking on "Yes" on login, etc)
> >SW> corporate communications policies, which is why they're so
> >important. (In
> >SW> the world at large, single-party consent is also what allows you to
> >SW> surreptitiously tape a conversation with just about anyone you
want--as
> >SW> long as you are really IN the convo and not just sitting quietly as a
> >third
> >SW> party--but separate regs apply to what you DO with the recording, of
> >course.)
> >
> >SW> The CE does leave room for "implied consent," but the precedents are
> >rather
> >SW> fuzzy. It is not enough, under this exception, to assume that
employees
> >SW> "just know" that an employer is watching...for the CE, there
generally
> >have
> >SW> to be policies published in some form regardless, but implied consent
> >SW> allows for some flexibility in what constitutes "approval," i.e.
whether
> >SW> you kept working at a company after you knew of their policy, even if
you
> >SW> never actually signed anything, or whether you could have been
> >expected to
> >SW> have heard an announcement made over the PA on a given day.
> >
> >SW> - ORDINARY COURSE OF BUSINESS EXCEPTION (OCBE): This exception states
> >that
> >SW> the prohibition does not apply if the employer's actions can be
perceived
> >SW> as "in the ordinary course of business." You might think that this
is a
> >SW> catch-all, but case law suggests it is not so. The question here is
> >SW> whether the scope of an employer's surveillance realistically
reflects
> >the
> >SW> danger to the employer's business. For instance, recording all calls
> >made
> >SW> to and from a MacDonald's franchise without telling the employees
> >would not
> >SW> generally be legal, precedents suggest...but supposing that the
franchise
> >SW> were the one in NYC in which several employees were murdered last
year
> >SW> during an inside-job robbery, the courts would probably see it
> >SW> differently. Again, if the CE does not apply, meaning that an
> >employer has
> >SW> effectively taken no action to alert employees to corporate
surveillance,
> >SW> the OCBE will NOT always fill in the gap.
> >
> >SW> - SYSTEM PROVIDER EXCEPTION (SPE): This one exempts "system
providers"
> >from
> >SW> the prohibition, which has been variously interpreted as only
including
> >SW> commercial providers such as ISPs and as covering the whole range of
> >public
> >SW> and private infrastructure providers. This is a big one, but it
really
> >SW> hasn't been tested enough in court to warrant a clear
> >SW> preceding interpretation. In one big case, a defendant specifically
> >used
> >SW> the lack publicized corporate policy to win a first trial, then lost
on
> >SW> appeal due to SPE.
> >
> >SW> - CONTEMPORANEOUS REQUIREMENT EXCEPTION (CRE): This exception does
not
> >SW> appear in ECPA, but several courts have interpreted the ECPA to
suggest a
> >SW> fourth exception that is quite inflammatory and appears to give
> >employers a
> >SW> "back door," provided they conduct themselves from the outset with
the
> >CRE
> >SW> in mind. Basically, the CRE says that e-mails no longer in transit
(i.e.
> >SW> on backups) are completely exempted from all surveillance
> >SW> prohibitions. Interesting, eh? But remember that if the ECPA has
been
> >SW> violated as regards a given employee, it won't matter that the same
> >company
> >SW> LATER abided by the ECPA, using the CRE as their targeted
> >exception. Once
> >SW> an employer has violated the act, it is liable for that violation,
> >SW> regardless of subsequent by-the-books activity, and most employers
would
> >SW> not want to be involved in a suit-and-countersuit matter.
> >
> >SW> With all the differing interpretations of the ECPA, you'd think that
> >SW> Congress would've found a more up-to-date and clearer successor to
it,
> >but
> >SW> an attempt in 1993 failed, as did several others, so the ECPA still
> >SW> stands. One would also want to look into any employment contracts
signed
> >SW> by those whose messages he intercepted, as there's a possibility that
> >these
> >SW> detailed a corporate hierarchy (they are/were directors, he a
> >sysadmin) in
> >SW> which their communications were explicitly deemed confidential and
> >thus to
> >SW> be shielded from those lower on the totem pole...such provisos are
> >SW> sometimes built into executive contracts to protect an executive team
> >from,
> >SW> for instance, the trickle-out of the truths behind "morale-boosting"
> >SW> (mis)representations of a company's cash situation. If this
contingency
> >SW> existed in their contracts, the mere act of "peeking" done by anyone
> >other
> >SW> than the directors' managers could have been a contract violation;
> >this is
> >SW> a good reason to use an automated content checker which would forward
> >SW> messages to the higher-ups without human intervention, as then
management
> >SW> is doing the hands-on work.
> >
> >SW> On another note (sorry to run on), Dan introduced the concept of
> >"libel" in
> >SW> one of his posts--I don't know what the exact text of the e-mail was,
but
> >SW> be aware that insults and epithets, like "Sandy's the most arrogant
> >SW> sysadmin I've ever seen," that don't really have objective true/false
> >SW> qualities, usually can't be libelous. If provable facts are
> >SW> misrepresented, like "Sandy's late every day," there may be a
> >case. Also,
> >SW> as for the idea of Dan's neglecting to forward the inflammatory
e-mail
> >SW> being itself criminal, this is unlikely--failure-to-report cases
> >SW> necessitate knowledge that a felony is being committed, and it should
be
> >SW> obvious that, given that he is a techie and not a lawyer, Dan could
not
> >SW> reasonably be expected to "know" this; IP infractions, though they
may be
> >SW> felonious, are much harder for the average person to pinpoint than,
say,
> >SW> child abuse or rape. On the other hand, speaking strictly in terms
of
> >SW> grounds for dismissal, COMPANY policy might punish the failure to
> >report a
> >SW> breach of security or usage policies.
> >
> >SW> Well, the upshot of all of this is, as many noted, "Get a lawyer."
There
> >SW> simply is not enough case law out there, especially not at the
Supreme
> >SW> Court level, to draw privacy-related conclusions based on the data
> >that Dan
> >SW> provided. I would welcome further discussion of such topics in this
> >forum,
> >SW> though some pure-techies might object, and I'd be happy to recite
some
> >SW> interesting case law.
> >
> >SW> Best,
> >
> >SW> Sandy
> >
> >SW> P.S. One would also wonder whether or why Dan used his real name on
this
> >SW> ML...I don't know if anyone's serving up archives anywhere...
> >
> >SW> At 01:13 AM 6/16/2001, you wrote:
> > >>Dan you have Subject Matter Authority. you can speak as to when,
where,
> > >>how, but not why.
> > >>
> > >>leave that to line authority, it keeps your algorithmic problem
solving
> > >>wisdom pure.
> > >>
> > >>you're not a sellout if you go to mgmt. with it. go to the first line
> > >>immediately above you.
> > >>if God forbid you are somehow harmed in this, first realize, email
admins
> > >>are still not walking around with will work for food signs: a company
that
> > >>burns me for being honest just lost valuable talent, and a large piece
of
> > >>their own credibility in the business community, because i'm very
frank
> > >>about my long history of personal failure in an interview. in my
> > experience,
> > >>documentable failure pays better than undocumentable success.
> > >>i have to assume that they'll check my references. my amateur
advice?
> > what
> > >>would i do? bang on the piano a while then pray or meditate, get some
> > peace
> > >>first.
> > >>
> > >>get some legal advice, pay for it if you have to upfront, your good
name is
> > >>priceless. if they hear you, you've gained your adversary's heart and
> > mind.
> > >>if they don't, they weren't worth having at any rate of pay. this is
my
> > >>last raving lunacy on this thread, it's becoming like kicking a dead
whale
> > >>down the beach. cumbersome and tiring. help yourself man, get a
lawyer.
> > >>i hope i don't ever find out what you're going through. it sounds
rough.
> > >>help yourself quick, then others will join in and help you.
> > >>----- Original Message -----
> > >>From: "Dan Evans" <[EMAIL PROTECTED]>
> > >>To: <[EMAIL PROTECTED]>
> > >>Sent: Thursday, June 14, 2001 07:14 PM
> > >>Subject: Re: [IMail Forum] A tricky moral problem
> > >>
> > >>
> > >>|
> > >>| ----- Original Message -----
> > >>| From: "Patrick Mathews" <[EMAIL PROTECTED]>
> > >>| To: <[EMAIL PROTECTED]>
> > >>| Sent: Thursday, June 14, 2001 2:38 PM
> > >>| Subject: RE: [IMail Forum] A tricky moral problem
> > >>|
> > >>|
> > >>| > pray, call a lawyer, because 'coming across an email' may also
raise
> > >>cause
> > >>| > for concern. if the mail was posted to a public forum. no
problem.
> > >>if
> > >>| it
> > >>| > was shown you by a recipient, no problem. an accidental viewing?
> > >>| problem.
> > >>| > accidents happen, but when they do, someone is always left holding
the
> > >>| > bag...
> > >>|
> > >>| Which is what we have here, and I have the bag at the moment :0(
> > >>|
> > >>| Dan
> > >>|
> > >>|
> > >>| Please visit http://www.ipswitch.com/support/mailing-lists.html
> > >>| to be removed from this list.
> > >>|
> > >>| An Archive of this list is available at:
> > >>| http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
> > >>|
> > >>
> > >>
> > >>Please visit http://www.ipswitch.com/support/mailing-lists.html
> > >>to be removed from this list.
> > >>
> > >>An Archive of this list is available at:
> > >>http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
> >
> >
> >SW> Please visit http://www.ipswitch.com/support/mailing-lists.html
> >SW> to be removed from this list.
> >
> >SW> An Archive of this list is available at:
> >SW> http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
> >
> >
> >Please visit http://www.ipswitch.com/support/mailing-lists.html
> >to be removed from this list.
> >
> >An Archive of this list is available at:
> >http://www.mail-archive.com/imail_forum%40list.ipswitch.com/
>
>
> Please visit http://www.ipswitch.com/support/mailing-lists.html
> to be removed from this list.
>
> An Archive of this list is available at:
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>
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