Federal Liability May Not Be A Fantasy

A federal court based in New York is allowing a case to proceed against a company called Fantasy Interactive, Inc. The plaintiffs are two former employees who apparently had a romantic relationship. The couple used Skype to send messages to one another, occasionally using the company’s computers. According to the complaint, an IT employee of Fantasy hacked into the plaintiffs’ Skype accounts and reads their instant messages. The terminated employees sued, alleging that the company, its principals and the IT guy violated the federal Stored Communications Act. The defendants moved to dismiss the complaint, contending that the Fantasy employee manual gave the company the right to monitor employee communications. But the court noted that the manual only governed the plaintiffs’ “employment relationship.” The complaint alleged that the company accessed personal communications occurring outside the workplace on plaintiffs’ personal computers. So even if the manual equaled “consent” under the SCA, that consent didn’t reach the personal messages. Although the court didn’t discuss it in detail, the manual may not have covered the Skype communications on the work computers. If those communications run through a server that is separate from the workplace server, there is an argument that they’re not covered by the restriction on “communications on the company system.” Better get with your IT folks and make sure the manual covers all the communications you want it to.