Today, in 2012, most employers have policies that expressly state that employees have no reasonable expectation of privacy in the emails that they send from their work computers. Employers require that their employees sign off on these policies. Therefore, any employee working for an employer with an electronic usage would likely have no ability to argue that any communication he or she made from a work computer was privileged – even if it were to an attorney. In United States v. Hamilton, Phillip Hamilton, a former member of the Virginia House of Delegates and eventually the Vice Chairman of the Appropriations Committee was convicted by a jury of bribery and extortion. The conviction arose from charges that as a state legislator, Hamilton had secured funding for a public university in exchange for employment by the university. Essential evidence used against him included emails that Hamilton sent to his wife from his work computer, from his work email account. These emails contained statements where he and his wife discussed their financial difficulties and how he should “shoot for” a salary of $6,000.00/month. Hamilton argued that the emails he had sent from his work computer to his wife should be protected by what is known as the “spousal privilege”. Communications between spouses are protected from being entered into evidence where there was no “voluntary disclosure” of the communication to a third person. Hamilton argued that back in 2006 when he had sent the emails, that there was no computer usage policy in place and therefore he had not waived the spousal privilege because he had a reasonable expectation of privacy in his emails. The U.S. Fourth Circuit Court of Appeals, however, determined that Hamilton waived the privilege by failing to make any effort to delete the emails once his workplace adopted an electronic usage policy that advised employees that emails stored on the system might be inspected at the employer’s discretion. So, all of the emails he sent from his workplace could be used against him. Lesson learned: Do not send any personal emails from your work email account. Everything you say in your email is discoverable and can be used against you.
