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Look, But Don't Log In

By Marjorie J. Peerce and Daniel V. Shapiro
May 26, 2009

You are in-house counsel at a public company and you suspect an employee may be leaking inside information. You decide to conduct an internal investigation. A computer forensic analysis reveals that the employee has accessed his personal Web-based e-mail account from his company computer and that his log-in information (username and password) has been recovered from the computer's memory. Can you log in to the account and read his personal e-mail?

Unlike an employer's internal e-mail system, which is generally understood to be under the ownership and control of the employer, personal Web-based accounts accessed at work raise new and unsettled questions about an employee's expectations of privacy. A computer that accesses a Web-based account ' such as an e-mail account, social-networking Web site, or instant messaging service ' merely provides a window into an account that is physically stored elsewhere. Information viewed or created using a company computer may be accessible without logging in to the account by accessing “temporary Internet files” on the company's computer, and is therefore arguably fair game to review. Other information in the account that was not viewed or created from a company computer, however, is likely only accessible by logging in and exploring the Web-based account. How far can you go?

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