A federal court finds a church liable—Fischer v. Mt. Olive Lutheran Church, Inc., 2002 WL 1306900 (W.D. Wis. 2002)
Article summary. A federal court in Wisconsin ruled that a church and its senior pastor, secretary, and business administrator, could be sued by a former youth pastor who was dismissed as a result of a “pornographic” telephone conversation that had been overheard by other church staff members, as well as pornographic materials that were discovered on his office computer. This case should be carefully studied by church leaders. Most churches provide staff members with computers, and these computers may be accessed by others. If pornographic material is discovered on a staff member’s computer, how should the church respond? This is the first court to address these issues in the context of a church employee.
Can church leaders dismiss an employee if they find pornographic files on his office computer? Or, would this amount to an invasion of the employee’s privacy or a violation of wiretap laws? These were the questions addressed by a federal court in Wisconsin in a recent case. This article will review the facts of the case, summarize the court’s opinion, and evaluate the significance of the case to church leaders.
Facts
A church employed a young man (“Don”) as its youth pastor. By accepting this position, Don agreed “to teach faithfully the Word of God … in its truth and purity … to exemplify the Christian faith and life, to function in an atmosphere of love and order characteristic of the Body of Christ at work, and to lead others toward Christian maturity, to show a due concern for all the phases of mission and ministry.”
After serving as youth pastor for a few years, Don was criticized by church board members who had received complaints about his job performance. The church personnel committee gave Don a negative performance review and advised him of areas that needed improvement.
Don opened a Microsoft Hotmail email account from a computer terminal at a local public library. Hotmail accounts are web-based, free, and reside on servers that are part of the Microsoft network. Don used his Hotmail account for personal purposes. At the time he opened his Hotmail account, he did not own a computer or subscribe to any internet service provider. He accessed his Hotmail account from the church’s computers using the church’s internet service provider, among other places.
On the morning of June 10, 1999, Don arrived early at the church and read the email messages on his Hotmail account. He saw that he had received an email message from “John Jacobsen,” who asked that Don call him. Don did not recognize the name. Later that morning, Don informed the church secretary (with whom he shared an office) that he was going down the hall to the associate pastor’s office. He did not tell the secretary that he was going to make a telephone call, although he often used the associate pastor’s office for this purpose. The church’s senior pastor had told Don to use the associate pastor’s office to make personal phone calls or in any situation in which he needed privacy.
A short time later, the church secretary left her office to place schedules in the mail trays. She took along a cordless telephone because her primary job was answering calls. The church had six telecommunication lines, two for computers and four for telephones. The cordless phone tied into one line of the telephone system. Because the secretary sometimes received church-related calls at home, she tried to call home to check her answering machine for messages. Instead of hearing a dial tone, she heard two male voices involved in a sexually graphic conversation. She recognized one voice as Don’s. According to Don, the other man on the telephone was “John Jacobsen,” a tutor he had known in college who was having a “sexual identity crisis.” The church secretary alleged that Jacobsen talked with Don about his sexual experiences and feelings, at times in graphic detail, and that Don recounted various homosexual encounters of his own. Don later insisted that he had not made any obscene or pornographic statements during this conversation. Rather, he merely listened to Jacobsen because he had been trained as a counselor to listen to people. Don, who was married and had four young children, denied being homosexual or bisexual.
The church secretary became concerned about the possibility of improper contact between Don and children participating in the church’s youth programs, given Don’s position in the church. Shaking from fear and shock, she walked to the church business administrator’s office because she believed the conversation she had overheard was an extremely serious matter that should be witnessed by another employee. She gave the administrator the cordless phone and whispered something about Don’s being on the line. The administrator heard Don and Jacobsen discussing homosexual acts and making lewd noises (Don later denied this). Believing that the caller was threatening violence to Don or others in the church, the administrator instructed the church secretary to use another phone line to call the police.
The church secretary called the police, and requested that an officer be sent to the church to remove Don from the premises because she was scared and repulsed by the conversation. The administrator walked down the hallway and confronted Don about his phone conversation and asked him to leave the building. Don thought that he had been accused of participating in an obscene conversation over the internet on the church’s computer. He left the building 10 minutes later.
After Don left the church, the administrator called the senior pastor and described briefly what had happened. A police detective called the church and asked the secretary and administrator to come to the police station and provide statements. Shortly after they returned to the church, Don returned as well. The senior pastor met with Don to discuss what had happened, and told Don that he was being suspended with pay pending an investigation. According to the senior pastor and business administrator, Don stated that he had told his wife “everything,” that his marriage was over, that he had nothing left to live for, and that he had checked his life insurance policy to assure his family would be adequately provided for and that he was contemplating suicide. Don later claimed that he had only told the senior pastor that a suspension would ruin his reputation in the church and community and that he had told his wife of the accusations. However, because of the senior pastor’s concerns that Don was suicidal, he stepped out of his office momentarily and had the church secretary contact the police again. Two police officers arrived a short time later and met with Don and the senior pastor. The officers shared the senior pastor’s concern regarding suicide, and had Don committed involuntarily to a hospital for observation.
The senior pastor visited with Don’s wife that evening, telling her that Don was a “sick” man, that he had had three or four gay relationships, and that he was suicidal.
In response to police recommendations, the senior pastor retained a computer technician on June 10, 1999, to examine the church’s computer files that Don used and to check Don’s email messages for any improper sexual communications with minors. Using the church’s computer, the technician accessed Don’s Hotmail account using a password “guessed at” by the senior pastor. The technician printed the email messages that he found in Don’s Hotmail account. The emails, from senders with male names, referred to Don as “my hot man,” “my favorite stud,” and “sweetie,” and included the statements “miss you babe” and “as always you were a treat!” Don insisted that before June 10, 1999, there were no such email messages in his account.
On June 11, 1999, Don accessed his Hotmail account in the presence of his wife and a neighbor and found no offensive emails in his account. The senior pastor claimed that nothing had been deleted from Don’s Hotmail account and that no Hotmail settings or passwords had been changed. Later that day the senior pastor again accessed Don’s Hotmail account to see whether any new messages had been received that would indicate improper communications with minors. He found two old emails (dated March 27 and April 6, 1999) which contained photographs of nude males. Don did not know how these emails ended up in his account. The next day the senior pastor again accessed Don’s Hotmail account and found a new incoming email, dated June 11, 1999, in which the sender wrote, “Wish I were there to give you a big kiss, hug and more this morning! You take care sweetie! Yours, Bill.”
A few days later the senior pastor, along with the chairman of the church’s board of elders, visited Don at his home to deliver his final paycheck and to encourage him to resign in order to avoid having his misconduct brought to the attention of others. Don’s wife asked what evidence the church had to support its claims. The senior pastor told her that he could provide the information only if Don signed a release. Don refused to do so.
The next day the church’s board of elders unanimously approved a motion to schedule a meeting of the congregation to consider the termination of Don’s employment. At the congregational meeting the church’s attorney described the June 10, 1999 telephone call that had been overheard by the church secretary and business administrator, but he did not refer to any emails. At the meeting, Don implied that the church had no documents to support its charges. The church’s attorney responded that he had copies of Don’s emails with him and asked whether Don would consent to their being read to the congregation. Don declined to give his consent, and so the contents of the emails were not disclosed. The congregation voted 91 to 43 in favor of terminating Don’s employment.
Don sued the church, the senior pastor, church secretary, and business administrator (the “defendants”) claiming that they had all violated federal and state electronic privacy laws by intercepting his telephone conversation on July 10, 1999, and by accessing his Hotmail account without his permission. He also sued each defendant for invasion of privacy and defamation. The defendants filed a motion to dismiss the case.
The court’s ruling
The court’s analysis of each of Don’s claims is summarized below.
Electronic Communications Privacy Act
The federal Electronic Communications Privacy Act, also known as the Wiretap Act, prohibits the intentional interception of “wire, oral or electronic communications.” The defendants conceded that Don’s telephone conversation was a “wire communication.” The Act defines an “interception” as “the acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” However, the Act has a “business extension” exemption which permits employees to use company telephones in the ordinary course of business without violating the Act. The court conceded that this exemption would apply to the interception of Don’s telephone call on June 10, 1999 by the church secretary and business administrator if they were using the cordless phone in the ordinary course of business.
The defendants claimed that the Wiretap Act was not violated since the phone was being used for business purposes when Don’s conversation with John Jacobsen was intercepted by the church secretary and business administrator. The defendants noted that Don was allegedly using the phone at the time to “counsel” John Jacobsen. Don insisted that his call was personal and that the secretary and business administrator had an obligation to stop listening as soon as they determined that the call was personal in nature, and in failing to do so they violated the Act.
The court agreed with Don, for two reasons. First, the senior pastor conceded that Don was allowed to make personal calls from the church phone. And second, it was not clear that Don’s duties included conversations “with a college friend, such as Jacobsen, or an adult who is not a member of the congregation, even if the call occurred during work hours.”
Defendants argued that even if the call was personal in nature, they had a legal interest in listening in because it raised concerns about (1) the safety of church personnel, and (2) possible church liability for improper contact between an employee and a minor. The court disagreed:
First, I am uncertain how a private telephone conversation raised safety concerns for church personnel, however sexually graphic and homosexual in nature it may have been… . Second, the church might have a legal interest in continuing to listen to the conversation if Don were speaking to a minor. However, it is undisputed that [the secretary and business administrator] believed that Don was speaking with an adult… . At the point [they] determined that the call was personal and that Don was not talking to a minor, they had an obligation to cease listening and hang up. Any legal interest the church might have had in protecting itself against Don’s conversation with a minor ceased to exist when [the secretary and business administrator] formed the belief that Don was talking with an adult.
Electronic Communication Storage Act
The Act specifies that “whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system” violates the Act. “Electronic storage” is defined as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”
The defendants claimed that the senior pastor did not violate the Act when he accessed Don’s Hotmail account on June 11 and 12, 1999, because Don’s Hotmail email was not in “electronic storage” as defined under the Act. The defendants argued that the Act “does not apply to the accessing of email messages in a recipient’s mailbox for at that point, transmission of the messages has been completed.” The court disagreed. It noted that the Act defines “electronic storage” as either temporary, intermediate storage incidental to the electronic transmission or any storage of such communication by an electronic communication service for purposes of backup protection. The senior pastor accessed Don’s email while it was stored on a remote, web-based server that was owned by Microsoft, an electronic communication service provider. The court concluded that Congress intended the Act to cover the exact situation in this case, as illustrated by an example provided in the Senate Report:
For example, a computer mail facility authorizes a subscriber to access information in their portion of the facilities storage. Accessing the storage of other subscribers without specific authorization to do so would be a violation of the act. Similarly, a member of the general public authorized to access the public portion of a computer facility would violate this section by intentionally exceeding that authorization and accessing the private portions of the facility.
The court noted that accessing Don’s Hotmail account intentionally was not enough to violate the act. Don also had to show that the defendants obtained, altered, or prevented his authorized access to his email account. The court concluded that there was enough evidence that this requirement was met that the defendants’ motion to dismiss had to be denied. It noted, in particular, that there was evidence that the church prevented Don from accessing his email account by changing his password.
The defendants also claimed that it was the computer technician, not they, who accessed Don’s emails, and so they had not violated the Act. The court disagreed. It concluded that the technician was acting as the church’s agent. However, the court concluded that the church secretary and business administrator did not violate the Stored Communications Act because they never accessed Don’s emails.
Computer Fraud and Abuse Act
Under the federal Computer Fraud and Abuse Act, anyone who “intentionally accesses a computer without authorization … and thereby obtains … information from any protected computer if the conduct involved an interstate or foreign communication” may have violated the act. However, in order to maintain a civil action under the Act, Don must have suffered “damage or loss” by reason of a violation. “Damage” is defined as “any impairment to the integrity or availability of data, a program, a system, or information that … causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals.” Damages are limited to economic damages. The Act does not define a “loss,” but the courts have interpreted it to cover “remedial expenses.” The defendants argued that Don failed to produce evidence that he suffered any damage or loss as a result of their acts of copying his email messages from his account. Don would have had to suffer damages or loss of at least $5,000 in order to maintain a cause of action under the Act. Although Don alleged that as of June 11, 1999, he could no longer access his Hotmail account because the defendants allegedly changed his password, he failed to show that he suffered any damage or loss as a result. As a result, the court granted the defendants’ motion for summary judgment as to Don’s claims under the Computer Fraud and Abuse Act.
Invasion of Privacy
Under Wisconsin law, an “invasion of privacy” includes “an intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private.” Don claimed that his right to privacy was intruded upon when (1) the church secretary and business administrator eavesdropped on his telephone conversation, and (2) the pastor and church accessed his email account. The defendants argued that neither a telephone conversation nor an email account is “a place” under the privacy law.
Don conceded that a telephone conversation is not “a place.” He argued, however, that at the time he was on the telephone, he was in an office that the pastor had allowed him to use for private telephone calls and the door to that office was closed. Therefore, Don reasoned, the “place” was the office, not the phone conversation. The defendants replied that it was “absurd” for Don to contend that he had a right of privacy when he was located in his employer’s office. The court was not convinced. It observed, “Defendants argue that it is the call that was intruded upon, not the office. However, Don was in a place (the office) where his privacy right was allegedly violated (via a phone extension). In other words, the fact that defendants used a phone extension to listen in on Don’s conversation rather than pressing an ear against the door is of no consequence… . When A taps B’s telephone wires A has invaded B’s privacy.”
The court conceded, however, that it was not clear that the acts of the church secretary and business administrator in eavesdropping on Don’s telephone call were “highly offensive to a reasonable person” as required to be an invasion of privacy. It left these questions to the jury.
The court then addressed the question of whether the access to Don’s email account by the pastor and church invaded his privacy. It concluded, “On its face, the language, ‘intrusion upon the privacy of another … in a place that a reasonable person would consider private’ does not limit the intrusion to a person’s immediate physical environment but rather encompasses a person’s private belongings as long as the place these private belongings are intruded upon is one that a reasonable person would consider private.”
The court quoted with approval from the Restatement (Second) of Torts (a respected legal treatise), “Intrusion on privacy of another may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit inspection of his personal documents.” Because it was disputed whether Don’s email account was a place that a reasonable person would consider private, the court denied the defendants’ request to dismiss the case.
Defamation
Don contended that the defendants defamed him by reporting falsely to the church’s board of directors that he “was an active participant in a telephone conversation with graphic sexual content, including homosexual acts and encounters, sodomy, and other acts of depravity.” The court noted that “a communication is defamatory if it tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating with him or her.” However, consent to the publication is an absolute defense. The defendants argued that when Don accepted his employment, the church bylaws specified that he could be terminated by a two-thirds vote of the congregation. As a result, by accepting his employment, Don “consented” to the publication of information relating to the suitability of his continued employment with the church, which included the defendants’ version of the telephone conversation. The court disagreed, noting that there was no specific evidence of consent. The bylaws “were neither part of Don’s call nor incorporated” into his employment contract.
The defendants also claimed that the “common interest privilege” protected their allegedly defamatory disclosure to the church’s board of directors and the voting members of the church. The court defined the common interest privilege as follows: “An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know… . The common interest privilege is based on the policy that one is entitled to learn from his associates what is being done in a matter in which he or she has an interest in common” and “is particularly germane to the employer-employee relationship.”
The court again quoted from the Restatement (Second) of Torts, “The common interests of members of religious … associations … is recognized as sufficient to support a privilege for communications among themselves concerning the qualifications of the officers and members and their participation in the activities of the society. This is true whether the defamatory matter relates to alleged misconduct of some other member that makes him undesirable for continued membership, or the conduct of a prospective member.”
The court concluded that it was clear that the defendants’ allegedly defamatory statements were conditionally privileged. However, it noted that a conditional privilege may be forfeited if it is abused. It cited five conditions mentioned in the Restatement (Second) of Torts that may constitute an abuse of a conditional privilege: (1) a defendant knows the matter to be false or acts in reckless disregard as to its truth or falsity; (2) the defamatory matter is published for some purpose other than that for which the particular privilege is given; (3) the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege; (4) the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged; or (5) the publication includes unprivileged matter as well as privileged matter.
Don contended that the defendants’ conditional privilege was forfeited because the church secretary and business administrator knew that their version of the events was false. The court agreed, noting that “Don has adduced evidence that [the secretary and business administrator] made false statements to the board of directors about Don’s role in the telephone conversation.” The court rejected the defendants’ request to dismiss Don’s allegation of defamation, and sent this issue to the jury. However, the court dismissed the defamation claims against the senior pastor and church since Don had not presented evidence that the senior pastor knew that the account of the telephone conversation provided by the secretary and business administrator was false.
relevance to church leaders
What is the relevance of this case to church leaders? While a decision by a federal district court in Wisconsin is not binding in any other state, the fact remains that this is the first court to address the liability of churches and church staff members for unauthorized access to an employee’s private telephone conversations and email. Therefore, this ruling may be given special consideration by other courts addressing the same issues, and it is for this reason that the case merits serious study by church leaders in every state.
1. The federal Electronic Communications Privacy Act. This Act (often referred to as the “Wiretap Act”) prohibits the intentional interception of “wire, oral or electronic communications” by any “electronic, mechanical, or other device.” As this case demonstrates, a telephone conversation is a “wire communication,” which means that it is unlawful to intentionally intercept a telephone conversation by means of an “electronic, mechanical, or other device.” However, the Act exempts
any telephone … (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business … . 18 U.S.C.A. 2510(5).
This exemption is called the “business extension” exemption since it applies to the use of an “extension” telephone at an employer’s place of business so long as the extension telephone is being used “in the ordinary course of business.” Note that there are two requirements for this exemption to apply: the intercepting equipment must be (1) furnished to the user by the phone company or connected to the phone line, and (2) used in the ordinary course of business. The “ordinary course of business” requirement was a central issue in this case. The court concluded that the extension telephone used by the church secretary and business administrator to eavesdrop on Don’s call was not being used in the ordinary course of business, for two reasons:
• The senior pastor of the church conceded that Don, and other church employees, were allowed to use church telephones for personal calls.
• Don claimed that he was speaking with an old college friend when his call was intercepted by the church secretary and business administrator.
Most churches allow employees to use telephones for personal calls, even if they have a written policy strictly prohibiting such use. As this case demonstrates, allowing employees to use church telephones for personal calls will make it more difficult for the church to qualify for the business extension exemption to the Wiretap Act. To illustrate, if a church is charged with violating the Wiretap Act because of the interception of a telephone call, it cannot claim that all calls made on church premises are necessarily “business” in nature if the church permits employees to use telephones for personal calls. The church may still be able to prove that it intercepted a call while a telephone was being used in the ordinary course of business, but this will be more difficult if it allows personal calls (or has a policy prohibiting personal calls that is routinely ignored).
Key point. When a church employee picks up a telephone and hears another conversation in progress, he or she must immediately determine if the conversation is business or personal. If it is personal in nature, then the employee should hang up the telephone. Continuing to listen in on a personal telephone call may subject the employee, and the church, to criminal and civil liability.
Let’s see how other courts have interpreted the business extension exemption. The leading cases are summarized below.
Example. An employee received a call from a friend who asked about a recent job interview the employee had with another company. The employee’s supervisor listened in on the call and fired the employee as a result of what he learned. The employee sued the employer for violating the Act. The employer insisted that the business extension exemption applied. A federal appeals court concluded, “The general rule is if the intercepted call was a business call, then the [employer’s] monitoring of it was in the ordinary course of business. If it was a personal call, the monitoring was probably, but not certainly, not in the ordinary course of business.” The court concluded that the business extension exemption did not apply: “While the employer might have been curious about [the employee’s] plans … it had no legal interest in them… . [The employee’s] interview was thus a personal matter, neither in pursuit nor to the legal detriment of [the employer’s] business.” The court held that under the Wiretap Act, the employer “was obliged to cease listening as soon as [the employer] had determined the call was personal, regardless of the contents of the legitimately heard conversation.” Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983).
Example. A business was burglarized and nearly $20,000 was stolen. The business owner suspected that an employee was the perpetrator. Hoping to catch the employee in a confession, the owner purchased and installed a recording device on an extension phone. When turned on, the machine would automatically record all conversations made or received on either phone, with no indication to the parties using the phone that their conversation was being recorded. The owner recorded, and listened to, twenty-two hours of the employee’s telephone conversations. While the employee never mentioned the burglary, she did admit to other indiscretions that led to her termination. She sued her former employer for violating the Wiretap Act. The owner claimed that the business extension exemption applied. A federal appeals court concluded that the business extension exemption did not apply: “We do not quarrel with the contention that the [owner] had a legitimate business reason for listening in: he suspected [the employee’s] involvement in a burglary of the store and hoped she would incriminate herself in a conversation on the phone. Moreover, [she] was abusing her privileges by using the phone for numerous personal calls even, by her own admission, when there were customers in the store. The [owner] might legitimately have monitored [her] calls to the extent necessary to determine that the calls were personal and made or received in violation of store policy. But the [owner] recorded twenty-two hours of calls, and listened to all of them without regard to their relation to his business interests. Granted, [the employee] might have mentioned the burglary at any time during the conversations, but we do not believe that the [owner’s] suspicions justified the extent of the intrusion… . We conclude that the scope of the interception in this case takes us well beyond the boundaries of the ordinary course of business.” Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992).
Example. An employer listened in on telephone calls made by an employee to see if he was sharing trade secrets with a former employee who owned a competing business. A federal appeals court concluded that “when an employee’s supervisor has particular suspicions about confidential information being disclosed to a business competitor, has warned the employee not to disclose such information, has reason to believe that the employee is continuing to disclose the information, and knows that a particular phone call is with an agent of the competitor, it is within the ordinary course of business to listen in on an extension phone for at least so long as the call involves the type of information he fears is being disclosed.” The court added, “In general, it is hard to see how use of an extension telephone to intercept a call involving non-business matters could be in the ordinary course of business, since such activity is unlikely to further any legitimate business interest. However, interception of calls reasonably suspected to involve non-business matters might be justifiable by an employer who had had difficulty controlling personal use of business equipment through warnings.” However, the court stressed that even these conversations could be monitored only long enough to determine if they were “personal” in nature. Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980).
2. Consent. The federal Wiretap Act provides that “consent” is a defense to criminal liability:
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. 18 USCA 2511(2)(d).
According to this provision, a church will not violate the Wiretap Act when it intercepts employees’ telephone conversations so long as the employees have consented to the interceptions. Can a church simply adopt a policy allowing it to intercept employee telephone calls, and require every employee to sign a form acknowledging and agreeing to the policy? Several courts have addressed the issue of consent in this context, and it is possible that a church could avoid liability under the Wiretap Act for occasional interceptions of employee telephone calls by adopting the following procedures:
(1) Adopt a written policy informing employees that their telephone calls may be monitored. It would be best to base this policy on a legitimate business purpose, such as the limitation of personal calls during office hours. It is not clear whether such a policy can apply to current employees unless they provide the church with something of value. This is a result of the basic principle of contract law that no contractual commitment is binding unless a party gives up something of value. This problem may be avoided by having current employees sign a written form (agreeing to the policy) at the time they receive a pay raise. This is an issue that should be addressed with a local attorney.
(2) Explain the policy to all new employees at the time of hiring.
(3) Have all new employees sign a statement acknowledging that they understand and agree to the policy.
(4) Attach a notice to the front cover of all telephone directories, reminding employees of the policy. While it may seem excessive to some, church leaders should also consider attaching an appropriate notice to all office telephones.
Summarized below are some of the leading cases addressing the issue of consent:
Example. A business was burglarized and nearly $20,000 was stolen. The business owner suspected that an employee was the perpetrator. Hoping to catch the employee in a confession, the owner purchased and installed a recording device on an extension phone. When turned on, the machine would automatically record all conversations made or received on either phone, with no indication to the parties using the phone that their conversation was being recorded. The owner recorded, and listened to, twenty-two hours of the employee’s telephone conversations. While the employee never mentioned the burglary, she did admit to other indiscretions that led to her termination. She sued her former employer for violating the Wiretap Act. The owner claimed that the employee had “consented” to the interception and recording of her personal telephone calls because he had mentioned that he might be forced to monitor calls or restrict telephone privileges if abuse of the store’s telephone for personal calls continued. A federal appeals court disagreed. It conceded that consent may be implied from the circumstances, but cannot be “cavalierly implied.” Further, “knowledge of the capability of monitoring alone cannot be considered implied consent.” The court concluded, “We do not believe that [the employee’s] consent may be implied from the circumstances. The [owner] did not inform [the employee] that he was monitoring the phone, but only told her he might do so in order to cut down on personal calls. Moreover, it seems clear that the owner anticipated the employee would not suspect that he was intercepting her calls, since he hoped to catch her making an admission about the burglary, an outcome he would not expect if she knew her calls were being recorded.” Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992).
Example. A federal appeals court ruled that a prison inmate consented to the interception and recording of her personal telephone calls, and therefore no violation of the Wiretap Act occurred. The prison routinely monitored inmates’ telephone calls. Inmates received notice of the monitoring in several forms. They were given two handbooks stating that all calls other than those to their attorneys would be monitored. They signed a consent form acknowledging that their calls might be monitored and recorded and that use of the telephones constituted consent to monitoring. They also received an orientation lesson plan stating that calls were monitored. Also, the prison reminded inmates that their calls might be monitored by placing notices of monitoring on or near the actual telephones. Calls were recorded at all times, and recordings were maintained on magnetic tapes connected to a computer that could search them. The court concluded that the inmate in this case “consented” to the interception and recording of her telephone calls. U.S. v. Hammond, 286 F.3d 189 (4th Cir. 2002).
Example. A federal appeals court ruled that a criminal defendant “consented” to the interception and recording of a private telephone call by prison officials and therefore no violation of the Wiretap Act occurred. The court noted that prison regulations required a notice to be posted at all monitored telephones advising users that “all conversations are subject to monitoring and that use of the telephone constitutes consent to this monitoring.” In addition, prison regulations require inmates to sign a form stating their awareness of and consent to this policy. The court concluded that under these facts inmates “consented” to the interception and recording of their telephone calls and therefore no violation of the Act occurred. United States v. Lanoue, 71 F.3d 966 (1st Cir. 1995).
Example. A federal appeals court ruled that three criminal defendants “consented” to the interception and recording of private telephone calls by prison officials and therefore no violation of the Wiretap Act occurred. The court noted that “consent is not voluntary merely because a person makes a knowing choice among alternatives; it must be an exercise of free will. The court must determine whether the actor’s free will has been overborne and his capacity for self-determination critically impaired. Consent to a wire intercept is not voluntary where it is coerced, either by explicit or implicit means or by implied threat or covert force.” The court concluded that the inmates consented to the interception and recording of their telephone calls by prison officials: “They had various options to choose from, since no one forced them to make these phone calls. There is not the slightest suggestion that the prison officials encouraged or lured them in to using the phone… . Moreover, the defendants signed forms which specifically stated that their phone calls could be recorded… . Inmates are provided with rules and regulations stating that the calls may be monitored and recorded. There is an intake screening with a counselor who explains the procedures and the forms to each inmate. The counselors who went over the forms with the defendants testified that they followed the procedures and explained the guidelines for making telephone calls. [The inmates] all signed forms acknowledging that they had either read the provisions themselves or had the acknowledgment read to them that their phone calls might be monitored and recorded. Absent some evidence that they were coerced or misled, the court can only conclude that the defendants knowingly and voluntarily consented to have their calls monitored and recorded. It is difficult to imagine what more the government could have done to make it clear to the defendants that the calls could be monitored and taped. This information was included in the guidelines given to them, on the form they signed, and they were told of this during their interview. All the evidence points to the conclusion that the defendants knew that their phone calls might be recorded, and that their consent was freely given. If they did not wish to submit to recording, they had the option not to use the phones. The fact that they knew of the recording and used the phones with such knowledge is further evidence of their consent.” U.S. v. Rohlsen, 968 F.Supp. 1040 (D.V.I. 1997).
Example. A federal appeals court ruled that three criminal defendants “consented” to the interception and recording of private telephone calls by prison officials and therefore no violation of the Wiretap Act occurred. The court observed: “They were on notice of the prison’s interception policy from at least four sources. [Federal law] provides public notice of the possibility of monitoring. In addition, inmates receive actual notice. First, upon first arriving at [the prison] and upon returning to the institution after an absence of nine months or more, each inmate must attend an admission and orientation lecture in which the monitoring and taping system is discussed. Second, every inmate receives a copy of The Inmate Informational Handbook which contained the following notice about the taping system: ‘Telephones … are located in each housing unit and are turned on every other day on a rotating basis …. These phones utilized by the inmates are MONITORED and TAPED.’ Third, notices were placed on each telephone, stating, ‘The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institutional telephones constitutes consent to this monitoring’ …. Moreover, prison records indicate that a case manager presented the inmates with a form containing the written notice of the monitoring and taping system, which they refused to sign. Thus, the [inmates] had notice of the interception system and that their use of the telephones therefore constituted implied consent to the monitoring.” U.S. v. Amen, 831 F.2d 373 (2nd Cir. 1987).
Example. A federal appeals court ruled that an employee’s knowledge that her employer had the ability to monitor employees’ private telephone calls did not constitute “consent” to such monitoring. Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983).
3. Penalties for violating the Act. A violation of the Wiretap Act can result in both criminal and civil penalties.
criminal penalties
The Wiretap Act specifies that those who violate the Act “shall be fined under this title or imprisoned not more than five years, or both.”
civil penalties
The Wiretap Act specifies that persons whose telephone or other electronic communications are intercepted in violation of the Act may sue the perpetrator for money damages. Private lawsuits must be filed within two years “after the date upon which the claimant first has a reasonable opportunity to discover the violation.”
4. The Electronic Communications Storage Act. The Electronic Communications Storage Act, also known as the Stored Communications Act, was added to the Wiretap Act in 1986. The Act specifies that “whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system” violates the Act. “Electronic storage” is defined as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”
The court noted that the Act defines “electronic storage” as either temporary, intermediate storage incidental to the electronic transmission or any storage of such communication by an electronic communication service for purposes of backup protection. The senior pastor accessed Don’s email while it was stored on a remote, web-based server (Hotmail) that was owned by Microsoft, an “electronic communication service provider.” The court concluded that Congress intended the Act to cover this very situation. However, the court also noted that Don had to prove that the defendants “obtained, altered or prevented his authorized access” to his Hotmail email account. This requirement may have been met, the court concluded, if the church prevented Don from accessing his email account by changing his password.
The court concluded that its conclusion that the church violated Don’s rights under the Electronic Communications Storage Act by accessing his email was not inconsistent with the Fraser case (summarized in the next example) since the church accessed Don’s email while it was stored on a remote, web-based server (Hotmail) that was owned by Microsoft, an electronic communication service provider.
Example. A federal court ruled that the Electronic Communications Storage Act could be violated only by accessing email that has not yet been downloaded to the recipient’s hard drive. An employer accessed an employee’s email that was located on its server after it had been downloaded by the employee to his hard drive. The email message that was accessed was not stored by an electronic communication service but was stored on the employer’s server. The court concluded that the Act, which prohibits unauthorized “access” to an electronic communication while it is in “electronic storage” provides protection for private communications only during the course of transmission: “Electronic storage is defined under the Act as ‘(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.’ Part (A) of the definition fits [what may be called] intermediate storage. It is clear that the Stored Communications Act covers a message that is stored in intermediate storage temporarily, after the message is sent by the sender, but before it is retrieved by the intended recipient. Part (B) of the definition refers to what [may be called] back-up protection storage, which protects the communication in the event the system crashes before transmission is complete. The phrase ‘for purposes of backup protection of such communication’ in the definition makes clear that messages that are in post-transmission storage, after transmission is complete, are not covered by part (B) of the definition of ‘electronic storage.’ Therefore, retrieval of a message from post-transmission storage is not covered by the Stored Communications Act. The Act provides protection only for messages while they are in the course of transmission.” The court noted that the employer retrieved the employee’s e-mail from storage after the e-mail had already been sent and received by the recipient. It acquired the employee’s e-mail from post-transmission storage. Therefore, its conduct “is not prohibited under the Stored Communications Act.” Fraser v. Nationwide Mutual Insurance Co., 135 F.Supp.2d 623 (E.D. Pa. 2001).
Very few courts have applied the Electronic Communications Storage Act to an employer’s access to an employee’s email account. From the limited precedent, it would appear that an employer does not violate the Act by accessing emails on a computer after they have been downloaded by an employee to his or her hard drive. The Act is violated when an employer accesses without consent an employee’s email account directly on the “electronic communication service provider” (such as Hotmail) and in addition “obtains, alters, or prevents authorized access” to an electronic communication “while it is in electronic storage in such system.” While a church may not violate the Act when it accesses an employee’s email after it has been downloaded to the employee’s computer hard drive, it may invade the employee’s privacy by doing so (as noted below). Church leaders should not access an employee’s email without first consulting with a local attorney.
5. State electronic privacy laws. Don alleged that the defendants violated the Wisconsin Communication Privacy Act. The court rejected the defendants’ request to dismiss this claim. Church leaders must realize that several states have their own electronic privacy laws that may apply to the interception of telephone calls and inspection of emails on church computers. These laws should be consulted.
6. Invasion of privacy. The court also concluded that Don could sue the defendants for invasion of privacy. Note that this basis of liability is completely separate from federal and state electronic privacy laws. It requires proof of intrusion upon the privacy of another in a manner highly offensive to a reasonable person, in a place that a reasonable person would consider private. The court concluded that Don’s privacy may have been invaded when (1) the church secretary and business administrator eavesdropped on his private telephone conversation, and (2) the pastor and church accessed his email account. The court quoted with approval from the Restatement (Second) of Torts (a respected legal treatise): “Intrusion on privacy of another may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit inspection of his personal documents.” Because it was disputed whether Don’s email account was a place that a reasonable person would consider private, the court denied the defendants’ request to dismiss this claim.
This aspect of the court’s decision is very important. Even if state or federal electronic privacy laws are not violated by an interception of a church employee’s telephone call, or inspection of the employee’s email or computer, such acts may amount to an invasion of privacy for which the church may be liable.
7. Defamation. The court noted that “a communication is defamatory if it tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating with him or her.” It concluded that the defendants clearly met this definition when they “falsely reported” to the church’s board of directors that Don “was an active participant in a telephone conversation with graphic sexual content, including homosexual acts and encounters, sodomy, and other acts of depravity.” The court then addressed two possible defenses to defamation:
• Consent. The court acknowledged that consent is a defense to defamation, but it rejected the church’s claim that Don “consented” to the disclosures made to the board and congregation as a result of provisions in the church bylaws. The court noted that there was simply no evidence that Don ever specifically “consented” to having the church bylaws govern his employment. In particular, the court pointed out that nowhere in Don’s employment contract was there any provision incorporating the church bylaws.
• Common interest privilege. The court acknowledged that a statement is not defamatory if it is protected by the “common interest privilege.” This privilege is defined in the Restatement (Second) of Torts as follows:
The common interests of members of religious … associations … is recognized as sufficient to support a privilege for communications among themselves concerning the qualifications of the officers and members and their participation in the activities of the society. This is true whether the defamatory matter relates to alleged misconduct of some other member that makes him undesirable for continued membership, or the conduct of a prospective member.
However, the court noted that this privilege may be forfeited if it is “abused,” and it listed the following five conditions that may constitute an abuse of the privilege: (1) a defendant knows the matter to be false or acts in reckless disregard as to its truth or falsity; (2) the defamatory matter is published for some purpose other than that for which the particular privilege is given; (3) the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege; (4) the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged; or (5) the publication includes unprivileged matter as well as privileged matter.
The court concluded that the common interest privilege was forfeited because the church secretary and business administrator “made false statements to the board of directors about Don’s role in the telephone conversation.”
© Copyright 2002 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m110 m111 c0502
