E-mail policies of the 50 states: a content analysis.

Even though wide-scale use of e-mail and the Internet in government organizations came a bit later than it did in private sector organizations, growth in e-government initiatives are currently narrowing the gap. According to the U.S. Department of Commerce (1), the percentage of employees using the Internet and/or e-mail at work grew from about 18 percent in 1998 to almost 42 percent in 2001. As its use has grown, e-mail has also become an increasingly risky and potentially costly mode of communication, mostly due to the intentional or unintentional abuse of the system by employees.

The number of incidents of e-mail abuse is on the rise in both the private and public sectors. Abuses range from employees spending excessive time on personal emails to sending harassing or otherwise inappropriate messages. Such abuses, at times, have led to difficult personnel decisions and, at times, public embarrassment. Growing awareness of such realities has prompted many organizations to develop written e-mail policies. Having a well--thought-out e-mail policy, along with training employees on the proper use of e-mail, is a major safeguard against employees' abuse of office e-mail privileges. A growing body of literature offers suggestions on the essential components of a well-written e-mail policy. Comparing these essential components with the provisions of state governments' actual current e-mail policies will permit an assessment of the adequacy and comprehensiveness of the states' policies.

The Importance of Written E-Mail Policy for Limiting Costly Personnel Decisions

A well-written e-mail policy can help) managers avoid having to make costly personnel decisions, prevent the loss of productivity, avoid public embarrassment for their agency, and prevent misunderstandings among employees. It effectively communicates the agency's expectations for proper employee use of office e-mail and also informs employees of their rights and responsibilities regarding e-mail.

Stories of employees being fired over e-mail abuse have become somewhat common. To cite just two examples, 23 people were fired from a New York Times Co. administration unit in Norfolk, VA, in December 23 for violating the company's e-mail policy. Merck and Co. dismissed an unknown number of employees for inappropriate e-mail and Internet usage in 2000. In addition to these disciplinary decisions, hostile workplace lawsuits have also increased. Chevron paid a $2.2 million settlement in 1999 to employees who claimed that unmonitored, sexually harassing e-mails created a threatening environment. The offenders' e-mail messages included, among other items, "25 Reasons Why Beer is Better Than Women."(2)

Similar stories abound in the public sector as well. Clearwater, Florida, has experienced widely publicized incidents of e-mail abuse. In 1999 the acting information technology director resigned following allegations that he used a private e-mail account to send sexually provocative statements to another city employee. Early in 2000 the supervisor of Clear-water's solid waste department was accused of racial discrimination because he e-mailed a questionable joke to a coworker. These incidents led to a series of investigations by city officials and, later, revisions of the city's e-mail policy. Even as the policy review and update were being conducted, however, the city's planning and development administrator was forced to resign for using the city's computer system to send e-mails containing improper jokes and conversations about his private storage business. (3)

Two other incidents bear mentioning. Firefighters in Columbus, Ohio, triggered an internal investigation, media sensation, and public uproar when a routine scan of a surge in on-the-job Internet usage revealed that fire division headquarters' staff were visiting as many as 8,000 pornographic sites a day. (4) A Federal Communications Commission employee inadvertently sent a dirty joke titled "Nuns in Heaven" to 6,000 journalists and government officials on the agency's group e-mail list, which led to negative publicity and national embarrassment for the agency. (5)

Some of the abuses cited were intentional, but others could well have been unintentional and due to the employees' lack of knowledge about their rights and responsibilities in the workplace. Courts have already heard several cases concerning employees' right to privacy and companies' rights to monitor electronic communications and Internet activities.

In Smyth v. Pillsbury (E.D. Pa. ,1995), an at-will employee sued his employer for wrongful termination when he was fired after the employer intercepted his e-mail messages to a supervisor. The plaintiff and his supervisor had exchanged messages in which the plaintiff referred to the company's holiday party as the "Jim Jones Kool-Aid affair" and made threats to kill the sales management team. In the lawsuit, the plaintiff alleged that the company repeatedly assured its employees that all e-mail communications would remain confidential and privileged, and that messages would not be intercepted and used by the company against employees as grounds for discipline. The U.S. District Court for the Eastern District of Pennsylvania ruled that "the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments."

In Bourke v. Nissan Corp. (S.P. Los Angeles County 1991), the trial court dismissed a suit by two employees who had allegedly exchanged inappropriate e-mails on the grounds that they had agreed to a company policy that e-mail be used for business purposes only. This ruling was upheld on appeal. In Tiberino v. Spokane (Wash. Ct. App. 2000), the Washington State Court of Appeals for District III ruled that public employees' e-mails are public records. (6)

Generally, then, courts have viewed e-mail as a tool employers provide to employees for work-related communications and have ruled that employers have the right to access and monitor how employee use that tool as long as they only conduct monitoring for legitimate business purposes. Legitimate monitoring includes that done to investigate suspicions that an employee is compromising business secrets, harassing other employees, inappropriately downloading copyrighted materials, visiting sites with objectionable content, or defaming other persons. Public agencies face the additional problem that they might be subject to disclose employees' e-mail communications when complying with open records laws and public or court-ordered requests for information.

Currently, no federal law directly covers employers' monitoring of office e-mails. The Electronic Communications Privacy Act of 1986 prohibits "outside" interception of e-mail without proper authorization, but it does not cover interception by persons inside the organization. In fact, exceptions exist that give employers the right to monitor employees' e-mail. Also, the USA Patriot Act has greatly expanded the government's authority to monitor electronic communications.

The absence of definitive Supreme Court rulings make the implementation of email policies the most viable alternative for employers wishing to have some legal protections for limiting and monitoring their employee's use of electronic communications. E-policies can help ensure the security of an agency's secrets and confidential information, reduce liability resulting from employee malfeasance, control network communications costs, facilitate the assessment of employees' job performance, and reduce nonproductive use of time and resources. From the employees' perspective, e-mail policies can clarify their privacy rights regarding electronic communications. In the absence of clear policies, employees may develop unreasonable expectations of privacy.

Having a well-written policy can go a long way to avoid unpleasant and difficult situations. As more and more government organizations are emphasizing egovernment, ensuring that employees use e-mail and the Internet appropriately has become a much higher priority than ever before. E-government encompasses more than the delivery of services through IT applications. It also includes using the Internet and Intranets for facilitating efficient and cooperative interactions among government agencies e-commerce, and digital democracy for more transparent accountability. (7,8)

Fountain (9) listed three sets of government relationship involving IT technology in a 2001 article titled "The Virtual State": (1) a government-to-citizen relationship involving reciprocal flows of information and services; (2) a government-to-business relationship that comprises procurement of goods and services from the private sector by the government and vice versa; and a government-to-government (G2G) relationship that reflects the networked nature of government, including interagency and intergovernmental linkages and partnership. In all the different interactions, e-mail is a critical means of communication, be it between two government employees or a government employee and a citizen or a government employee and a private business employee. Electronic communication is a core component of e-government and its growing use raises several issues that need to be addressed in agency policies. Having a well-written e-mail policy will allow agency managers to answer questions like the one Stiefer posed in a 2000 Assessment Journal article: "Suppose you have an employee who decides to send hostile e-mail to the city council, the local newspaper, or the IRS using your agency's e-mail address. Is the communication from the employee or from you?" (10)