Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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Editor&rsquo;s Note: This post is a joint submission to BakerHostetler&rsquo;s <a href="http://www.discoveryadvocate.com/">Discovery Advocate blog</a>.
Communications between spouses are typically accorded a &ldquo;marital communications privilege&rdquo; because they are &ldquo;<a href="http://supreme.justia.com/cases/federal/us/291/7/case.html">regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails</a>.&rdquo;&nbsp; But marital communications to or from a workplace computer just became less privileged &ndash; at least in the Fourth Circuit.
In <a href="http://www.ca4.uscourts.gov/Opinions/Published/114847.P.pdf">United States v. Hamilton</a>, the Fourth Circuit considered Phillip Hamilton&rsquo;s challenge to his conviction for bribery and extortion under color of official right.&nbsp; A jury concluded that, &ldquo;while a state legislator, Hamilton secured state funding for a public university in exchange for employment by the university.&rdquo;&nbsp;
Email that Hamilton sent to his wife from his part-time consulting job at the Newport News public school system was key evidence in his conviction.&nbsp; On appeal, Hamiltonargued that his email exchanges with his wife were subject to the marital communication privilege and were improperly admitted into evidence.&nbsp; Why did a three-judge panel of the Fourth Circuit disagree?
The Fourth Circuit concluded:
<ul>
<li>a marital communication is &ldquo;publicly disclosed&rdquo; and, therefore, the privilege is waived when the communication is stored on a workplace computer and the workplace computer use policy provides that there is &ldquo;no expectation of privacy&rdquo; in the use of the device;</li>
<li>it did not matter that the email at issue predated the adoption of the workplace computer use policy because Hamilton&ldquo;did not take any steps to protect the emails in question, even after he was on notice of his employer&rsquo;s policy permitting inspection of emails stored on the system at the employer&rsquo;s discretion.&rdquo;</li>
</ul>
Hamilton, supported by amicus Electronic Privacy Information Center (EPIC), argued that there is generally a reasonable expectation of privacy in the use of email.&nbsp; But the Fourth Circuit concluded that that expectation ends in the face of a policy that states otherwise.&nbsp; The Court likened the workplace computer to a stenographer and suggested, &ldquo;just as spouses can &lsquo;conveniently communicate without&rsquo; use of a stenographer, they can also &lsquo;conveniently communicate without&rsquo; using a work email account on an office computer.&rdquo;
EPIC <a href="http://epic.org/amicus/hamilton/EPIC-Hamilton-Amicus-FINAL.pdf">amicus brief</a> suggested that the lower court&rsquo;s evidentiary ruling was out of step with modern workplace communications technology &ndash; and it may be that Hamilton and EPIC will now point to the Fourth Circuit&rsquo;s example likening an email system to a stenographer as further evidence of a decision that reaches into the past rather than focusing on the modern workplace.
EPIC focused on the eroding distinction between business and personal communications in the modern workplace.&nbsp; Indeed, much has been written about &ldquo;<a href="http://www.inhouseblog.com/bring_your_own_device_to_work_policy/">bring your own device</a>&rdquo; policies where an employee supplies her own smart phone or tablet and the device is also set up for workplace communications.
But the Fourth Circuit was not faced with that fact pattern and EPIC&rsquo;s arguments may yet find traction if a question arises about a communication stored on a device with mixed personal and business attributes.&nbsp; But even in that situation, an employee should be careful to separate business communications on a work account from personal communications on a personal account.
This case continues to emphasize that employees who consider their communications on workplace devicesprivate&ndash; even, for example, when they access personal email accounts on workplace computers &ndash; put themselves at risk.&nbsp; This issue sometimes arises when an employee contacts counsel from a workplace computer that is later the subject of discovery in a case brought by that employee against the employer.
Finally, as I prepare to participate in a <a href="http://www.bakerlaw.com/news/suzanne-hanselman-and-gil-keteltas-to-discuss-technology-in-the-boardroom-at-nacd-panel-presentation-12-13-2012/">panel today on technology in the board room</a> with my colleague <a href="http://www.bakerlaw.com/suzannekhanselman/">Suzanne Hanselman</a>, I also see some warnings from Hamilton that are relevant to modern, mobile directors and the companies on whose boards they serve.&nbsp; Think carefully about how sensitive information is communicated to outside directors.&nbsp; If such information is accessed from the director&rsquo;s day job, it may remain on that workplace computer and be subject to later discovery.

Marital Communications are “Essential to the Preservation of Marriage” – Unless Made from a Workplace Computer