E-mail surveillance and constructive knowledge (Part 2)

In my post yesterday I suggested that employers in some circumstances may be presumed to have constructive knowledge of employee e-mails and that this may justify routine e-mail monitoring.

Let’s push the idea of constructive knowledge a little further.

Consider the Virginia Tech shooting. Let’s say Cho Seung-Hui, the troubled 23-year-old shooter, had an accomplice and let’s say Cho and the acomplice planned the shooting by way of e-mail exchange. Could the University be liable for failing to take reasonable steps in response to the e-mail exchange? In other words, would it have breached a duty (either a civil duty or perhaps one based in occupational health and safety legislation) to monitor its e-mail system to identify threatening e-mails and respond appropriately?

I’ve been thinking lots about the privacy-related implications of Virginia Tech and wrote about it with my colleague Catherine Peters several months ago. As universities and colleges across North America are thinking through their security-related policy, I wouldn’t be surprised if routine, software-aided e-mail surveillance is under consideration at one or more institutions.

Could it be justified on the basis of a competing legal duty? The most directly-applicable case law is American, and tends to suggest the answer is “no.”

In Shin v. MIT the Commonwealth of Massachusetts Superior Court allowed a wrongful death action to proceed against a suicidal student’s residence don and MIT’s dean of student affairs – finding they did have a duty to take reasonable steps to secure the student’s short term safety. The case caught the attention of colleges and universities who would argue (as MIT did) that the relationship between a student and a post-secondary educational institution is not close enough to warrant a duty to protect students from harming themselves and others. The duty endorsed by the court is seemingly triggered by the formation of a quasi-custodial relationship marked, in its words, by the “imminent probability of harm.” On this reasoning, at some point after a student is designated “at risk” (voluntarily or otherwise) a school’s duty crystallizes. At the same time, the student’s right to privacy becomes diminished.

As for the duty to protect the campus community at large (where the risk is generalized rather than specific), the duty is more likely to conflict with privacy rights. This is well-illustrated by another Commonwealth of Massachusetts Superior Court decision – Bash v. Clark University from last November. The student who attended at Clark and died from a heroin overdose at the end of her freshman year was far from trouble-free. In her one year at the university she had been noted a number of times for alcohol related misconduct, placed on academic probation, referred to counseling and questioned about drug use (where she admitted trying heroin). The Court held the University and its administrators did not owe the student a duty of care. It made the point that the standard for the imposition of a duty is high because of competing “social values,” including privacy values:

Third, recognition of the existence of a legal duty on the part of university officials and staff in this case would conflict with the expanded right of privacy that society has come to regard as the norm in connection with the activities of college students. The incursion upon a student’s privacy and freedom that would be necessary to enable a university to monitor students during virtually every moment of their day and night to guard against the risks of harm from the voluntary ingestion of drugs is unacceptable and would not be tolerated.

So short of some threshold – which is high according to this Court’s reasoning – a school’s duty is limited and student privacy rights remain undiminished. This certainly weighs against a duty and corresponding right to conduct routine e-mail surveillance as a means of managing the risk of catastrophic on-campus violence. It also supports an argument that a university or college will not likely be held to have constructive knowledge of e-mails sent over its system in the same manner as would other organizations.

While this reasoning may not give university and college administrators comfort when contemplating the Cho Seung-Hui scenario presented above, they can and should take other steps to assess and monitor potential threats (including reasonable grounds e-mail searches). If they are confident that these means will not be effective, depending on local laws, routine e-mail monitoring may still be an option. My only point, and I hope it’s a useful one, is that privacy rights must fit with (and be limited by) competing legal duties.

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