Email Right to Privacy – Why Small Businesses Care

We’ve become a nation of email-using business owners. That’s why it’s such a good thing that a U.S. Federal Appeals court today found that businesses have an expectation of privacy over their emails and the government can’t seize them from an ISP without a warrant.

Consider that a recent survey by SurePayroll, an online payroll service, says:

  • Over 80% of small business owners believe e-mail is a key to the success of their business.
  • Even more interesting, 62% believe email is just as effective or more effective than in-person or phone communication. Yep, that’s right — a majority think email is just as good or better than actually talking.
  • Oh, and how many times do you check your email each day? Over one-fourth of us check email more than 20 times a day. In a typical work day, that works out to about once every half hour.
  • More than 50% of those surveyed say they spend about one to two hours reading or writing e-mail each day.

Are you getting the picture that we small business owners are conducting more and more of our business through email?

With email so central to what we do and how we operate, it’s a good thing that a Federal Appeals Court declared that businesses have an expectation of privacy with regard to their emails.

Now what does the Federal court case mean? The case applied to the Federal government seizing email records without a warrant from a business’s ISP. The Court said you can’t do that — people expect emails to be private. Therefore, the government needs to get a warrant before getting emails from your ISP. An Associated Press story quotes the judges’ decision:

“The district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails,” Judge Boyce Martin said in a 3-0 ruling.

“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past,” the appeals court said.

This is an important case and a good decision. After all, we’re using email as a substitute for other communications in business — communications that we also expect to be private.

What remains to be seen is whether the court decision will change anything as between an employer and employee. Today, many employee handbook policies state that employers own your work email and that you as the employee have no expectation of privacy. That’s different from the government seizing a company’s emails without a warrant. Whether today’s court decision will be applied to give employees more rights over their email versus their employers, remains to be seen. We’ll wait for some of the law bloggers to tell us what it means for employees and whether business owners can monitor employee emails.


Anita Campbell Anita Campbell is the Founder, CEO and Publisher of Small Business Trends and has been following trends in small businesses since 2003. She is the owner of BizSugar, a social media site for small businesses.

6 Reactions
  1. It only makes sense that any company should have the right to inspect their files at any given time. I don’t feel that any employee should have an expection of privacy when using company e-mailing for their own personal use. It’s called “common sense”.

  2. Thanks Anita nice post, and important. We use email so much that having it scooped up by authorities after the fact feels like a personal violation.

    Re companies and employees, I’m very sensitive to this because my company has 35 employees. The head of tech support has the capability to look at email because we manage our own mail server. Sometimes somebody messes up, virus or something, and occasionally there is some indigestible email that clogs the whole system. We have to go in to that person’s email to fix the problem.

    Given that background, since it’s really impossible to actually guarantee privacy, we feel much better in going the conservative route and warning everybody that email isn’t private, so we don’t have some horrible snafu.

    Tim Berry

  3. I agree with the ruling and am pleased to hear it. It certainly would be a violation of privacy. However, with respect to the business having the ability to go into email account’s – that’s to be expected. If your uncomfortable with that – stick with your personal email instead of your business account. I’ve never encountered such a situation, but would expect that the employer’s have the right.

  4. I believe that employers should have the right to access business email accounts but the content should be kept private. I think employers should make it known to the employees that they can or will access business email accounts if need be. If employees know that the emails they send may be read, then anything they want private should be sent under their own personal email account.

  5. Do companies have the right to continue using your e-mail account after you leave, “” is a question i like to have anwsered.

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