Monitoring employee's keystrokes may have been unlawful

Brahmana v Lembo, ___F.Supp.2d___(N.D. Cal. May 20, 2009), is an interesting decision. An employee who alleged that his employer unlawfully monitored his computer keystrokes in order to obtain the password to the employee’s personal email account can proceed with his claim under the Electronic Communications Privacy Act, a federal held. The employee claimed, his employer used monitoring tools such as local area network analyzers and key loggers to record his keystrokes when he entered his email password. In the Ninth Circuit, gaining access to stored electronic information does not violate the ECPA, the court noted; however, the Act is implicated when electronic communications are “intercepted” during transmission. The employee’s allegations were “… sufficient to render plausible the claim that [the employee’s] communications were monitored in some way, but they do not specify whether the particular means of monitoring might monitor keystrokes that had actually affected interstate commerce,” as required by the statute. Because some means of the alleged monitoring may constitute a violation of federal law, the court refused to dismiss the employee’s complaint.

This is an interesting case to watch.

Mitchell H. Rubinstein