Confidentiality and Attorney Client Privilege in the Internet Age: How to Handle Employer Monitoring of Employee Email

(Excerpt) This Note argues for the use of an objective element that focuses on the experience from the perspective of the user. The subjective element of the analysis remains unchanged, but a court will be asked to consider whether the client’s subjective belief was objectively reasonable from their perspective as a user of the Internet. This test avoids the issue of requiring clients to consider the path their electronic communication takes through the Internet by focusing on their perspective as a user of the Internet. Given the seemingly private nature of email, this analysis starts with a strong presumption that an email message is privileged. Next, for each party that has a right to access the email message as it flows through the Internet, the court considers the relationship as between the client and the party with access from the client’s perspective as an Internet user. The court asks what the nature of this relationship is, how foreseeable it is that the communication may be of interest to this party, and whether the party regularly exercises its right to monitor the email such that the client should expect that the message would be monitored. This approach has the effect of limiting the analysis to the perspective of the user, who is entirely unaware of some parties—like operators of routers on the Internet—and well aware of others—like an employer or email provider—for transparent parties, monitoring is entirely unforeseeable and thus privilege is not affected. This Note proceeds in four parts. Part I provides an overview of the attorney-client privilege with a focus on the history and policy behind the confidentiality requirement. Part II explores the differing approaches, and their respective applications, currently used by courts to determine when privilege attaches to an attorney-client communication transmitted through or using an employer’s systems. Part III provides a background of the relevant technology and discuss the different viewpoints courts can take when analyzing an electronic communication. Part IV proposes a new objective analysis of the reasonableness of a client’s subjective belief of privacy that focuses on the communication from the perspective of the user, rather than the perspective of an outsider viewing the Internet as a series of physical connections