Monthly Archives: May 2013

Harvard Dean Resigns After Secret Email Search. Can Your Employer Read Your Email?

So, the Dean of Harvard College (the undergraduate part of Harvard University) resigned after it was found out that she ordered a perusal of the resident deans’ emails. Obviously the resident deans’ were outraged when they found out that their email subjects and recipient lists were tracked to see who had leaked the information about the Harvard cheating scandal. Politically, the Dean had to step down, but did she have to legally? The answer in this case is emphatically no.

As to the straight law on the subject. Nothing in Federal or Maryland law bars an employer from reading any or every email that you send under your work account. To be VERY clear: you have NO PRIVACY on your work email account.

Similarly, your employer can read ALL NETWORK TRAFFIC that is sent across its network, whether it be your own private email, or websites visited. What this means is that your employer can look at everything you looked at, and will have access to networked passwords if they were sent unencrypted. Your use of the employer’s network can subject you to discipline or discharge. It also means that your employer can use that information how it sees fit.

What does that mean to you if you are contacting your attorney by email. My advice has been for several years to NEVER email me from a work email address, whether you are at home or at work, or from your personal account if you are using a work computer or using your employer’s network, even if with your personal cellphone.

To go a little more in-depth with cellphones, if your employer has an open WiFi network, and you connect your cellphone to it (for faster speeds, to avoid data usage on your plan, etc.) anything that cellphone does becomes data on the network, and can be read. So if you send me an email or read an email from me, from your cellphone, while you are at work and using the employer’s WiFi network that communication can be read. There is no expectation of privacy in this situation. It also means that there is no attorney-client privilege.

Many of my clients are maintaining Workers’ Compensation claims as a result of a work injury with their current employer. I communicate with my clients by email a lot, and everyone is warned to not do the above. So, when I am asked of the ramifications of resigning to the Workers’ Compensation claim, if it is sent over the employer’s network, the employer will not only know my answer, but that you are contemplating resignation. Ponder those implications.

Please, be smart. Keep your personal life separate from your work life.


Midwest Tornados

Our thoughts and prayers go out to those devastated from the tornadoes in the Midwest, especially Oklahoma and Texas. We can’t begin to imagine the heartache at the loss of life from those storms.

Lawyers and Ethics

A funny thing happened on the way to the courthouse for a law firm called the Prenda Legal Group. The firm seems to have lost its way ethically. While all attorneys are tempted into grey areas while representing clients, the best way to avoid the temptation is to ask oneself a simple question: Is this worth my license? For Prenda, the answer seems to have been yes. And each attorney is likely to pay with his license to practice law, and, possibly, his freedom.

Other blogs have done a much better job than I could ever hope to do in following this story, the best explanation being on the Popehat blog. As a member of the bar, the allegations are shocking: a law firm sets up dummy clients (yes, plural) to assign copyrights for gay pornographic movies. Now, setting aside the question as to whether one can copyright a pornographic movie in the first place, attorneys cannot both own the client and represent the client, at least without disclosing the financial interest in the litigation. But it goes beyond that.

The antics don’t stop there. The next questionable practice was to sue in a reverse class action, which is extremely frowned upon. Normal class actions take place when a group of plaintiffs who are injured in a similar fashion by a single defendant group together to prove that the single defendant caused them harm. In these cases, the single plaintiff is suing multiple unnamed defendants for allegedly downloading the same film in different ways at different times from different places. That becomes a legal nightmare for a court or a plaintiff’s attorney. So, why would they do that? The allegations are that Prenda’s actual plan was to use the ability to subpoena the records of internet service providers (ISPs) to get the names and addresses of account holders to whom a suspected internet protocol (IP) address is assigned. Once Prenda had this information a demand letter threatening to name that account holder in a lawsuit for downloading gay porn would follow.

The demand would be for less than the cost of hiring an attorney to defend the bogus claim. Essentially it is cheaper to settle than to fight for these defendants and there is no public accusation of downloading gay porn made. If this sounds like the mafia shaking down businesses to make sure nothing bad happens, that is exactly what it sounds like to me. This is the business model of a copyright troll.

A federal district court judge in the United States District Court, Central District of California agreed that this sounded like a mafia shakedown. He has issued an Order sanctioning the Prenda lawyers in the case they brought in that district for the attorneys fees for the defendants, referring them to every state and federal bar association where the attorneys hold their licenses for further proceedings, and referred them to the United States Attorney for the Central District of California for an investigation as to whether these attorneys were in violation of the Raketeer Influenced Corrupt Organization (RICO) Act (yes, the one they use against the mafia). Oh, and to really put the screws to these attorneys, he reported them to the Criminal Investigation Division of the IRS. The cherry on top came in a footnote. Since Prenda’s demands of the defendants were calculated to be just less than the cost of defending the claim, Judge Wright calculated the sanctions for the attorney’s fees to be just less than the cost of the appeal from the decision. True poetic justice.

I really have to ask, is this worth your license, and your money, and your freedom?

Judge Wright’s Order courtesy of Techdirt.