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Privacy Issues: Employer using Keystroke Monitoring to collect employee's personal information
Wednesday 27 June 2012, 11:30AM
By Fortune Manning Lawyers NZ

It is natural for employers to assume that they have the right to access employee's email accounts on computers which they provide.  However, the question is how far can an employer go in carrying out such an investigation? 

The issue has been reviewed by the Privacy Commissioner. In this privacy complaint the employee was being investigated by the employer. As part of the investigation the employer collected information from the employee's work computer. However, the employer also used software to collect keystroke logs which identified the employee's password to his personal web based email account.

On the first issue the Privacy Commissioner was satisfied that the employer could access information directly from the employee's work computer. The employer had in its employment agreement and its employment manual clear notice that workplace computers were subject to monitoring. However with regards to collecting the keystroke information the Privacy Commissioner concluded that the policies were not explicit enough to make an employee aware that such detailed information was being collected by the employer. Consequently, it was held that the collection of the keystroke information breached the privacy principals.

Once the employer had obtained the employee's password it used it to access the employee's personal email account. It also appears the employer copied certain emails out of that personal email account.

The Privacy Commissioner held that the information that the employer obtained from the personal email account went beyond what was relevant to the employment investigation, breached the privacy principles and was unreasonably intrusive. 

The lessons to learn from this case is that an employer must ensure that in both its employment agreements and policies they have a clear and encompassing policy informing the employee that their workplace computer (and any other employer provided technology) will be subject to monitoring and expressly state the extent of that monitoring. With regards to an employee's personal email account it is doubtful that an employer will ever be able to access such an account without breaching the privacy principles.

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