2010 Is Not 1984: Stengart v. Loving Care Agency, Inc. and Cyber Privacy in the Workplace

"There was of course no way of knowing whether you were being watched at any given moment," explained Winston Smith, the protagonist of George Orwell's masterpiece, 1984. Smith and his fellow employees worked and lived under the assumption that every sound they made was overheard, every utterance recorded, and every movement scrutinized by their employer, a government agency. As an ever-increasing number of employers provide their employees with work-issued computers and Internet access, life appears to be imitating art. While computers, the Internet and e-mail have resulted in unprecedented efficiencies and greater ease of communication, computers record voluminous information about how they are used. This means when employees use work-issued computers for personal matters, and employers find the records of this use, employees can feel as though 2010 has become 1984.

But looks can be deceiving, as demonstrated by one widely followed appellate decision, Stengart v. Loving Care Agency, Inc.1 Awaiting a decision on further appeal to the New Jersey Supreme Court, Stengart involves an employee's use of a work-issued computer to access her Internet-based, password-protected personal e-mail account to communicate with her attorney about her upcoming lawsuit against her employer. This article discusses how the intermediate appellate court in Stengart neglected to explain and address the role of one of the computer's ordinary, default operations – the production of .html files when a web page is viewed on the computer – in recording the content of the e-mails between the employee and her attorney.

This article appeared in the April 2010 edition of Bloomberg Law Reports – Privacy & Information Law. Click on the link below to view the full article.