2 Va. J.L. & Tech. 4 (Fall 1997) <http://vjolt.student.virginia.edu>
1522-1687 / © 1997 Virginia Journal of Law and Technology Association
UNIVERSITY OF VIRGINIA
2 VA. J.L. & TECH. 4
Windows Nine-to-Five: Smyth v. Pillsbury and the Scope of an Employee’s Right of Privacy in Employer Communications
by Rod Dixon[*]
II. The Source of an Employee’s Right of Privacy in the Workplace
III. Evaluating the Smyth Right of Privacy
[U]nlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost.
[*] Rod Dixon, B.A., M.A. (University of Pittsburgh 1984 & 1986), J.D., (George Washington University Law School 1992) is an attorney with the U.S. Department of Education and a graduate law student at Georgetown University Law Center pursuing an LL.M. in Labor Law.
 Thomas E. Weber, Line Between E-mail and Voice Mail Fades, Wall St. J., Feb. 13, 1997, at B6. Electronic mail, often referred to as "e-mail," is a form of digital communication where text or graphical messages are sent from one computer to another, somewhat like postal mail is sent from one location to another. A computer user sends a message to another person’s computer or terminal, which is usually in a different location. The messages are sent instantly and usually travel over communication networks – sometimes called local or wide area networks (LAN or WAN systems) – or in many instances the messages may travel across phone lines essentially as digital communications. Most company e-mail systems require that the computer user access the system using some type of user name and identification code. This procedure authorizes the user to access the system, and provides some level of security ensuring that the e-mail messages read by the computer user are addressed to the identified user. See R.J. Ignelzi, Privacy In the Workplace Part Two: Under Scrutiny E-mail, phone calls, voice mail legally can be monitored by boss, San Diego Union-Trib., July 3, 1995 at D1.
 Scott Dean, E-mail Forces Companies to Grapple With Privacy Issues, Corp. Legal Times, Sept. 1993, at 11.
 See R.J. Ignelzi, Privacy In the Workplace Part Two: Under Scrutiny E-mail, phone calls, voice mail legally can be monitored by boss, San Diego Union-Trib., July 3, 1995 at D1.
 Jerry Mahoney, Watchful Workplace; Employee Monitoring Has New Dimensions and Old Concerns, Austin Am.-Statesman, Sept. 8, 1996. Electronic monitoring generally refers to an employer recording, reading, or listening to telephone or computer communications sent to employees by others. In a few specific contexts, the law governing electronic communications establishes a technical definition of what electronic monitoring may encompass; those definitions are addressed below when appropriate.
 Dean, supra at 11. Corporate e-mail grew 83 percent among the Fortune 2000 firms between 1991 and 1993, and nine out of ten employers of over 1,000 workers in the United States. now use e-mail. John Thackery, Electronic-Mail Boxes a Dumping Ground for Meaningless Data, Ottawa Citizen, May 28, 1994, at B4.
 Although throughout this article I use the term "e-mail," the term "electronic or computer communication" should be preferred because computer communications actually include a great deal more than what typically is referred to as e-mail. Indeed, the thesis of this paper is based, in part, on the proposition that some courts and commentators have often mistakenly drawn an artificial and anachronistic distinction between e-mail communications and non-e-mail computer communications. I also will refer explicitly to e-mail communications with the caveat that I see no relevant distinction between e-mail communication and other forms of computer communications when addressing workplace privacy issues.
 914 F. Supp. 97 (E.D. Pa. 1996). See also Bohach v. City of Reno, 932 F. Supp. 1232, 1234-35 (D. Nev. 1996) (holding no right to privacy with messages sent on police department’s computerized paging system because it is in ordinary course of business for police departments to record information, and department members were informed messages are logged onto network).
 The court’s decision in Smyth clearly represented new ground for the district court. Prior to its decision in Smyth, the district court had never reviewed a wrongful discharge action concerning computer communications. The court made no explicit references to relevant and analogous case law on the subject, nor did the court rely on interpretations of relevant state or federal statutes to guide its analysis in this complex area. See generally 914 F. Supp at 98-101.
 914 F. Supp. at 101.
 See id.
 Alcatel Introduces Cross Connect Technology Key to the Establishment of the All-Optical Central Office, Bus. Wire, Sept. 22, 1997. In most modem communications, the modem first converts the digital computer data into analog signals or sounds. Then, the telephone network converts the transmitted analog signal to a digital signal to enable the data to travel along a patchwork of digital and analog phone lines, which ultimately enables computer users to communicate via computer through several forms of communication, including desktop video conferencing, e-mail transmissions, voice or sound transmissions, and even through a connection to the Internet to receive live radio broadcasts. W. John Blyth & Mary M. Blyth, Telecommunications: Concepts, Developments, and Management 80-81 (2d ed. 1990).
 A communications common carrier provides transmission service facilities to the general public, like a telephone service company. Id. at 329.
 914 F. Supp.at 100. Since at least 1891, Pennsylvania has recognized the common-law rule, often referred to as at-will employment, that employees may be discharged at any time, for any reason or for no reason at all. Henry v. Pittsburgh & Lake Erie R.R., 21 A. 157 (Pa. 1891); Forman v. BRI Corp., 532 F. Supp. 49, 50 (E.D. Pa. 1982). The employment relationship exists at the will of both parties, and either is free to terminate the relationship at any time. More recently, however, courts consistently have brought employers out of the at-will relationship by granting employees a right of action against the employer for wrongful discharge when the employer is found to have terminated the employee in violation a clear mandate of public policy. See Geary v. United States Steel Corp., 319 A.2d 174, 180 (Pa. 1974); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363, 1365-66 (3d Cir. 1979).
 914 F. Supp. at 101.
 Id. at 98, n.1.
 Id. This statement appears to be a reference to the 911 followers of religious cult leader Jim Jones who committed mass suicide by drinking a poison-laced beverage in Jonestown, Guyana, in 1978. Jonathan Friedland and Raphael Pura, Log Heaven: Troubled at Home, Asian Timber Firms Set Sights on the Amazon, Wall St. J., Nov. 11, 1996 at A1.
 914 F. Supp. at 98. The parties disputed whether Pillsbury actually intercepted Smyth’s e-mail communications electronically. Despite Smyth’s claims, Pillsbury reported that it obtained the e-mail communications in print form when another worker saw a printed copy of the messages in a pile of papers to be recycled and brought the messages to the management’s attention. Id.
 Id. at 98-99.
 See also Jonathan Wallace, High Technology and the Law, A Legal Perspective on the Open Systems Industry, E-Mail Privacy: What are your Rights?, http://www.uniform.org/news/html/publications/ufm/aug96/legal.html; 22 Computer Law & Tax Report 12 Firing based on E-mail not Wrongful Discharge (June 1996).
 See also Jonathan Wallace, High Technology and the Law, A Legal Perspective on the Open Systems Industry, E-Mail Privacy: What are your Rights?, http://www.uniform.org/news/html/publications/ufm/aug96/legal.html; 22 Computer Law & Tax Report 12 Firing based on E-mail not Wrongful Discharge (June 1996).
 914 F. Supp. at 101. Notably, the Smyth court declined to follow the line of case law that would have permitted Smyth’s wrongful discharge action to be based on the public policy emanating from the federal constitution’s privacy right. Courts have acknowledged that private sector employees should be protected from the threat of discharge where such action may be opposed to constitutionally protected interests. See, e.g., Novosel v. Nationwide Ins. Co., 721 F.2d 894, 900 (3d Cir. 1983) (employee’s constitutional right to express himself politically is sufficient to state a public policy under Pennsylvania law).
 Id. Pennsylvania has an anti-wiretapping statute, although the Smyth court made no note of it. See 18 Pa. Const. Stat. Ann. § 5721 (West 1983 & Supp. 1997). As noted, infra, similar state statutes often form the basis of employee privacy actions. It is unclear whether reliance on the statute, rather than common law, would have resulted in a different result for the Smyth court since, as discussed below, privacy issues often are evaluated using the same analysis regardless of the source of law.
 In 1965, the Supreme Court held in Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965), that there was a right of privacy protected by the Federal Constitution. The court held that a Connecticut contraceptive statute was unconstitutional as applied to a married couple.
 Indeed, the "right of privacy" may be more appropriately described as a bundle of rights, which derive from at least four distinct sources: the Federal Constitution, various state constitutions, statutory and regulatory sources, and the common law of most states. The Supreme Court laid the framework for the constitutional right of privacy in the early 1920s, in Meyer v. Nebraska, 262 U.S. 390, 399-403 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 534-36 (1925). These cases recognized that parents had the right to make decisions concerning the educational welfare of their children. As a result, parents ostensibly were afforded a privacy right of protection from state intrusion into the family unit. The Court moved closer to granting an express right of privacy in Prince v. Massachusetts, 321 U.S. 158, 164-71 (1944), by holding that the family unit, in the confines of the home, cannot be subject to state intrusion.
 The Search and Seizure clause of the Federal Constitution does not protect citizens from unreasonable searches by private parties. See, e.g., United States v. Jacobsen, 466 U.S. 109, 113-14 (1984); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974).
 The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
 In a reasonable search, the searcher typically has obtained a warrant based on probable cause. Searches conducted without a warrant are adjudged per se unreasonable. Katz v. United States, 389 U.S. 347, 357 (1967).
 Terry v. Ohio, 392 U.S. 1, 21 (1968).
 See e.g. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 (1989) (employees involved with drug interdiction to who are required to carry firearms can expect diminished level of privacy); O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (some employees’ expectations of privacy are unreasonable when search is by supervisor).
 See e.g. United States v. McLaren, 957 F. Supp. 215, 219 (M.D. Fla. 1997) (employer can monitor telephone when substantial nexus exists between use of telephone instrument and specific fraudulent activity being investigated); T.B. Proprietary Corp. v. Sposato Builders, Inc., No. CIV. A. 94-6475, 1996 WL 290036, at *2 (E.D. Pa. May 31, 1996) (monitoring extension telephone or other telephone equipment in Pennsylvania in ordinary course of business is not prohibited); Ali v. Douglas Cable Communications, 929 F. Supp. 1362, 1390-91 (D. Kan. 1996) (monitoring telephone calls of employee accused of theft is acceptable ordinary business decision).
 This is true with regard to public employees as well as private sector workers. Many commentators have concluded that the Supreme Court has fashioned search and seizure law poorly for the public workplace because it continues to rely on a radically outdated view of how the workplace functions. The Supreme Court has all but eliminated constitutional protection for public employees with respect to work-related searches and seizures. See O’Connor v. Ortega, 480 U.S. 709, 730-31 (1987) (Scalia, J. concurring).
 C. Leigh Haynes, Note, The Envelope, Please: Problems and Proposals for Electronic Mail Surveillance, 14 Hastings Const. L.Q. 421, 431-37 (1987). See also Barbara Garson, The Electronic Sweatshop 205-24 (1988) (collecting personal anecdotes regarding surveillance).
 See, e.g., Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.) [hereinafter ECPA]. Where state protection against wiretapping or eavesdropping is less stringent than the ECPA, federal law controls. However, where state law is more stringent, a potential offender is subject to the higher standard. This point is critical when considering whether state law might provide broader privacy protection than its federal counterpart. Under the ECPA, states may enact broader privacy protection in the workplace should they see fit to do so. S. Rep. No. 541, 99th Cong., 2d Sess. pt. 1 at 8 (1986) (report discusses areas that Congress did not intend the ECPA to reach).
 The ECPA protects users of telephones and other communications equipment from wiretapping and similar invasions of privacy. The Act also includes within its purview electronic mail, cellular phone service, and other forms of electronic communications not carried over public networks. 18 U.S.C. §§ 2511-2711 (1988).
 Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.)
 See, e.g., H.R. Rep. No. 1218, pts. 2-7 (1991). First, the ECPA amended the definitions of "wire" and "oral" in Title III to include the term "electronic." An "electronic communication" specifically includes e-mail. The phrase "electronic communication" is defined broadly and is intended to cover any communication not carried by sound waves, and not carrying the human voice. Second, Title III was amended to include the words "aural or other acquisition." Amending this section allowed Congress to include non-aural, electronic communications within the purview of Title III’s protection. The term "intercept" in Title III now includes acquiring the contents of an electronic communication non-aurally, in addition to acquiring a wire or oral communication aurally. For example, using an electronic wiretap to read and store a competitor’s computer modem transmissions without consent would violate Title III even though the wiretapping involves no human ear listening.
 18 U.S.C. §§ 2510-2521 (1988). The Act is generally referred to as Title III, and the scope of communications covered the title include wire, oral and electronic communications. Title III defines "electronic communications" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photoptical system that affects interstate or foreign commerce," but excludes cordless telephones, tone-only paging devices and tracking devices. 18 U.S.C. § 2510(12) (A), (B) and (C) (1988).
 Courts have developed a cause of action for injury based on a tortious invasion of privacy. See K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 635-36 (Tex. Ct. App. 1984) (citing Billings v. Atkinson, 489 S.W. 2d 858, 859 (Tex. 1973)) (court stated that the essence of our right of privacy is our right of be left alone, to live a life free from intrusion and unwanted publicity), writ refused, 686 S.W.2d 593 (Tex. 1985). Similarly, this is the basis of Smyth’s lawsuit.
 The tort normally includes a scheme of four distinct torts protects the right of privacy: (1) unreasonable intrusion upon the seclusion of another; (2) misappropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. William L. Prosser, Privacy, 48 Cal L. Rev. 383, 389. Each tort recognizes a "substantial zone of freedom," where an individual has the right "to be left alone." K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 635-36 (Tex.Ct.App.1984).
 Restatement (Second) of Torts § 652 B (1977).
 Such an intrusion may occur by a defendant’s use of mechanical aids. Restatement of Torts (Second) § 652 B, comment B (1977). In deciding whether the intrusion is into a private matter, courts require not only that the employee have a subjective expectation of privacy but also that the expectation be objectively reasonable. K-Mart Stores Corp., 677 S.W.2d at 636.
 Restatement of Torts (Second) § 652B (1977).
 See, e.g., Wash. Const. art. I, § 7 (providing that no person shall be disturbed in his or her private affairs). The purpose of this constitutional amendment is to prevent unreasonable searches and seizures and to require a standard of a reasonable expectation of privacy. City of Seattle v. See, 408 P.2d 262 (Wash.1965), rev'd on other grounds, 387 U.S. 541 (1967). Generally, the Washington provision does not apply to private individuals, but government employers are within the purview of the provision. But cf. CAL. CONST. art. 1, § 1. (stating "all people are by nature free…") California courts have held that private actors are within the purview of the constitution. Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 199-200 (Cal. Ct. App. 1989); see also Cal. Penal Code § § 630-632 (Deering 1983 & Supp.1992) (specifically stating that private communications come within the purview of the state eavesdropping and wiretapping statutes).
 914 F. Supp. at 100-101.
 914 F. Supp. at 99. In "at-will" employment jurisdictions, like Pennsylvania, an employer may discharge an employee with or without cause, at pleasure, unless restrained by contract. Reciprocal rights exists for employees, who may end an employment relationship with an employer for good cause, bad cause, or no cause at all in the absence of an employment contract. See Henry v. Pittsburgh & Lake Erie Railroad Co., 21 A. 157 (Pa. 1891); Johnson v. Resources for Human Development, Inc., 843 F. Supp. 974, 979 (E.D. Pa. 1994).
 914 F. Supp. at 100. The court rejected Smyth’s promissory estoppel claim. According to the court, despite Pillsbury’s assurances that it would not reprimand or dismiss employees based on the content of an e-mail communication, the common law of Pennsylvania precludes an employer from being estopped from dismissing an employee based upon a promise, even when reliance is demonstrated. 914 F. Supp. at 100 n. 2.
 Id. at 99.
 Id. at 100 (citing Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 620 (3d Cir. 1992).
 Id. at 101.
 Id. The court’s statement appears to constitute dictum since the resolution of the motion to dismiss did not require it to reach the issue of what interest Pillsbury had in intercepting Smyth’s e-mail communications. Indeed, under a Rule 12(b)(6) motion, the court had to assume that Pillsbury intercepted the e-mail communications in contravention of company policy. In this regard, Pillsbury’s legitimate interests undoubtedly would be substantially diminished when balanced against an employee’s interests in his workplace privacy.
 See O’Connor v. Ortega, 480 U.S. 709, 730 (1987) (Scalia, J., concurring noting that "it is privacy that is protected by the Fourth Amendment, not solitude."); Mancusi v. DeForte, 392 U.S. 364, 369 (1968) (stating that privacy expectation did not change simply because a person shared an office with others).
 See Ohio v. Robinette, 519 U.S. ___., 117 S. Ct. 417, 421, 136 L.Ed. 2d 347 (1996) (court addressed issue of reasonableness in the context of the 4th Amendment).
 Of course, computer communications actually occur without palpable physical dimensions. Although some computer users can actually see and talk to each other through video-conferencing or some other such device, most users send computer communications through an electronic system for which they have no idea where the actual computer server is physically located or where the digitized data travels once it is transmitted.
 See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369 (1968) (holding that an employee may have a privacy interest in an office even if the office is shared by two other employees); Katz v. United States, 389 U.S. 347, 353 (1967) (holding that electronic surveillance of a public telephone without a warrant violates the Fourth Amendment).
 See, e.g., Ortega at 718, infra; Mancusi, 392 U.S. at 369.
 Smyth, 914 F. Supp. at 101.
 O'Connor v. Ortega, 480 U.S. 709, 720-24 (1987). The Court reasoned that the public employer's interests in workplace supervision, control and efficiency justified severely limiting employee privacy. Similarly, an individual’s expectation of privacy is not eliminated merely because of the fact that each time a person makes a telephone call, subscribes to a magazine or purchases goods or services using a credit card information concerning the contents of the transaction is recorded in database somewhere.
 Ortega, 380 U.S. 709, 712.
 Id. at 713.
 Id. at 713-714.
 Id. at 714.
 Id. at 718.
 Id. at 730.
 Ortega, 480 U.S. at 730-731. (Scalia, J. dissenting). Stated another way, while an employee may expect conversations uttered in a normal tone of voice to be overheard by others situated near her, she may not expect to have her conversations lawfully intercepted and monitored in an office in another part of the building by her employer.
 911 F.2d 1573 (11th Cir. 1990).
 911 F.2d at 1577. Walker could be considered doctrinally different because Walker sued his employer under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Despite this difference, the case is worth examining in detail because it pointedly addresses issues of wiretapping and the privacy of employee communications in the workplace. The issues in Walker remarkably resemble issues which might arise in the workplace regarding computer technologies such as e-mail.
 914 F. Supp. at 101.
 Walker, 911 F.2d at 1575.
 Id. The district court granted summary judgment for Darby who was the named defendant for the United States Postal Service. Id. at 1577. On appeal, the Eleventh Circuit found that, for Walker’s claim to survive summary judgment, a court must find that questions of material fact exist regarding: (1) whether Walker’s communications were actually intercepted by his supervisors through the use of some device, (2) whether Walker had an expectation of privacy that his conversations would not be intercepted, and (3) if Walker had such an expectation, whether it was justified under the circumstances. Id. At 1578.
 Walker 911 F.2d. at 1577.
 Id. at 1578.
 Important to the discussion of e-mail privacy is Title III’s distinction between protected oral communications and protected wire and electronic communications, the latter including e-mail. Title III’s definition of "oral communication" is drawn from the principle enunciated in Katz v. United States, which protects such communications only when the speaker has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 389 U.S. 347, 353 (1967). The ECPA, however, protects "wire communications" and "electronic communications" against interception without reference to the privacy expectations of the parties to the communication. The ECPA includes three primary exceptions to its prohibition against the interception or accession of electronic communications: (1) an exception allowing interception if one of the parties consents; (2) an exception allowing providers of wire or electronic communication services to monitor their lines to ensure adequate service; and (3) an exception allowing interception if done by a device provided by the communications provider or subscriber and done in the intercepter’s "ordinary course of business." 18 U.S.C.A. § 2510. Currently, several reported cases have applied the ECPA in the case of new cellular technologies and display pagers, but only one federal case has explicitly applied the Act to e-mail interception or accession. See Wesley College v. Leslie Pitts, 1997 WL 547324 (D.Del. 1997); U.S. v. Carazana, 921 F.2d 1557 (11th Cir. Fla.), Jan. 30, 1991, (No. 88-5557).
 Indeed, Congress recognized that computers were causing the convergence of communications media when it enacted the Telecommunications Act of 1996, Pub. L. No. 104-114 (codified as amended at 47 U.S.C. § 151 et seq. (1996)). The Act removed the artificial barriers that Congress had set up under the Communications Act of 1934 between telephone and cable services and recognized that advancement in technology no longer made the restrictive regulation of distinct media meaningful.
 The Internet is simply 100,000 or so interconnected networks that enable computer users connected to one of those networks to transmit electronic data to computer users connected to any one of the interconnected networks. This network of networks is global and may include as many as 10,000,000 computers. Some of the networks connected to the Internet are vast and are often referred to as the backbone providers of the Internet; such networks would include Sprint, UUnet, and MCI Communications Corp. See American Civil Liberties Union v. Reno, 929 F. Supp. 824, 830-835 (E.D. Pa. 1996) (noting the fundamental impact of the Internet on modern-day communications).
 See, e.g., American Civil Liberties Union v. Reno, 929 F. Supp. 824 (S.D.N.Y. 1996) supra note 79.
 See 18 U.S.C. § § 1708-1710 (1988) (sections concerning theft or receipt of stolen mail matter generally, theft of mail matter by officer or employee, and theft of newspapers).
 See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 127-128 (1989) (recognizing that there are justifications for different levels of scrutiny in regulating varying communications media). But cf. American Civil Liberties Union v. Reno, 929 F. Supp. 824, 972-883 (S.D.N.Y. 1996)(recognizing that the Internet is a global, decentralized communications medium and, as such, is more akin to telephone communications than to other media).
 See, e.g., Thomas E. Weber, Line Between e-mail and Voice Mail Fades, Wall St. J., Thursday, Feb. 13, 1997, at B6. (discussing the emergence of unified messaging technology which allows the user to integrate e-mail and voice-mail messages).
 These advancements are noteworthy because we know that Congress did not amend Title III of the ECPA until technological advances made Title III obsolete.
 A further advancement in computer communications technology is the emergence of Internet Telephony. Internet Telephony allows computer users, who have access to the Internet, to make what ostensibly is a low cost long distance telephone call to other computer users using a computer’s voice communications capability. Internet Telephony calls add no additional cost to companies already connected to the Internet through the company’s LAN system and consumer users can use Internet Telephony to make long distance "phone calls" for the price of a local phone call. Video-conferencing is already used using the Internet Telephony technology by many businesses. The FCC issued a Notice of Proposed Rulemaking for Access Charge Reform, April 1996, in response to complaints filed with the agency from local and long distance phone carriers alleging that Internet Telephony technology impermissibly permitted Internet software companies to offer unregulated phone services over the Internet. The FCC is not expected to act until fall 1997. 62 Fed. Reg. 4670 (1997), 1997 WL 34505.
 A few commentators have suggested that the purported ease with which computer communications can be intercepted coupled with the fact that computer communications, especially e-mail communications, can be protected via encrypton so that only the person to whom the message is addressed may read the contents, demonstrates that users who do not protect their e-mail communications have little or no expectation of privacy in those communications. Yet, the jurisprudence of the right of privacy has rarely inquired as to what safeguards an individual adopts to establish whether an expectation of privacy exists. Although telephones, and most notably cellular communications, can be tapped or intercepted, individuals using such devices may still expect that the contents of their communications to remain private. Significantly, whether an individual’s expectation of privacy is reasonable may, in fact, depend on whether the individual adopted readily available devices to safeguard against known privacy risks associated with the communications device. Currently, it seems doubtful that a court would deem an employee’s failure to use encryption when transmitting e-mail as a factor supporting the employee’s subjective lack of an expectation of privacy. Use of encryption technology is far from readily available. For one, most useful encryption devices still require computer acumen far above that of the average e-mail user to implement the safeguards. More important, many useful encryption programs are heavily regulated as firearm devices, which cannot be exported outside the United States.
 This morass of privacy protections depending on the communications medium used is no insignificant factor when you consider that in Smyth, Pillsbury contended that its retrieval of a discarded printout of the contents of Smyth’s e-mail communication was not an interception of an e-mail message. See Barbara Woller, Workers have little if any privacy with e-mail, the Courier-J., June 10, 1996 at 06B (the author quotes James Boudreau, who is identified as an attorney for Morgan, Lewis, & Bockius in Philadelphia, the firm that represented Pillsbury). Under current jurisprudence, an employee could be faced with the difficult burden of determining whether the print out was the result of a digitized voice mail or e-mail communication.
 See generally, ACLU v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996)(findings of fact paragraphs 12 & 46).
 The Firewall Dilemma: Too few locks, Too many doors, Byte, August 1996 at 72.
 See generally, American Library Association v. Pataki, 97 Civ. 0222 [LAP] (N.Y. Sep. Ct., June 20, 1997)(findings of fact).
 Even where an employer does not permit its employees to encrypt their e-mail, the fact that an employee does so despite the employer’s policy would still seem to manifest the employee’s expectation of privacy. Unauthorized use of encryption by an employee would not, by itself, seem to permit an employer to decrypt the message, although the employee could be subject to discipline or discharge for violating company policy.
 An employer could also justify monitoring e-mail to prevent employees from leaking trade secrets or committing acts for which a court could hold the employer vicariously liable. See John P. Furfaro & Maury B. Josephson, Electronic Monitoring in the Workplace, N.Y.L.J., July 6, 1990, at 3; but cf. Kirk W. Munroe, Commercial Eavesdropping: A Catch 22, 63 Fla. B.J. 1, 11 (Mar. 1989) (arguing that a company which monitors to prevent employee misconduct potentially exposes itself to "lawsuits, penalties and damages").
 See e.g., David F. Linowes & Ray C. Spencer, Privacy: The Workplace Issue of the 90’s, 23 J. Marshall L. Rev. 591 (1990) (discussing the history of workplace privacy actions); Vernars v. Young, 539 F.2d 966, 969 (3d Cir. 1976) (finding a cause of action for invasion of privacy may be maintained if an unauthorized person opens the mail of another).
 See James Hannan, A Practical Guide to Data Communications Management, 105-08 (1982) (thorough analysis of the basic e-mail encryption devices); see Stan Miastkowski, Put a Positive Lock on your Data, Byte, Feb. 1989, at 100 (describing the importance of using an e-mail encryption device).
 Regarding the final inquiry in assessing the right of privacy in Smyth, it is unclear what the ultimate outcome would be. Clearly, procedurally, the court should have denied Pillsbury’s Rule 12(b)(6) motion. Whether, given the benefit of trial, the court would have balanced the interests more favorably for Smyth is open to considerable doubt if Pillsbury obtained the printed e-mail messages from Smyth’s trash dispenser. Nonetheless, this point is vigorously disputed by the parties and, therefore, cannot be answered by anyone without the benefit of fact-finding.
 704 F.2d 577 (11th Cir. 1983).
 Id. at 579
 Id. at 581.
 Id. at 581-582. The Watkins court stated that it could not expand "the phrase 'in the ordinary course of business' to mean anything that interests a company" because such a broad interpretation of the exception would "flout the words of the statute." Id. at 582. Furthermore, the court acknowledged that if a situation ever existed in which an employer could monitor a personal call, then this constituted such a case because the employee discussed matters of great interest to the employer. Id. at 583. However, the court concluded that it is unacceptable to formulate a rule including the interception of personal telephone calls within the ordinary course of business. Id.
 Employers may, however, run afoul state wire-taping laws which often offer victims the opportunity to obtain statutory damages. These laws are often broad enough to protect workers in some states. See, e.g., Deal v. Spears, 780 F. Supp. 618, 624 (W.D. Ark. 1991) (finding the two defendant-employers liable for statutory damages to both parties for the monitored telephone conversations and mandating that each defendant pay each conversant $10,000).
 Notably, employers have taken widely divergent positions on this issue. Richard A. Danca, Privacy Act Would Force Firms to Inform Their Employees About E-Mail Monitoring: Privacy Issue Comes of Age in the Networked World, PC Wk., June 28, 1993, at 203. The American Civil Liberties Union’s Task Force on Civil Liberties in the Workplace takes the position that employers should not read employee e-mail. Id. The Computer Professionals for Social Responsibility (CPSR), which in fact lobbied Congress to specifically include e-mail in its proposed legislation, says that companies should give individuals more privacy, but that company policies could spell out monitoring practices. Id. The Electronic Frontier Foundation in Washington favors employee privacy. Id.
 Privacy law, as a common law tort, often refers to "the right to enjoy life--the right to be let alone." See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890).
 Although the emphasis throughout this paper has been on the courts’ responses to the question whether an employer’s monitoring of an employee’s e-mail communication improperly intrudes upon an employee’s right of privacy, it appears dubious that this issue is the kind where each state’s judicial system or legislature should be left to deal with this issue as best as it can. Notwithstanding that a significant body of law protecting American workers has emanated from states and local governments, a federal law would have the advantage of reaching beyond the borders of any given state. Consequently, many of the questions that have arisen since Smyth could be answered with federal legislation. Notably, as a matter of historical record, important worker protections, ranging from employment discrimination to occupational health and safety, have been the province of a federal statute.