Shhhhh… Pillow Talk and Work Do Not Mix

Pillow talk, nighttime tales, sheet secrets (whatever your preferred phrasing) and the sharing it promotes has long been an issue in situations requiring discretion. Especially when you move that conversation from the privacy of your home to electronic means. Luckily, when the relationship elevates to the level of marriage, communications between spouses are considered confidential and cannot be used in court as evidence, right?!?!  Maybe not. Although often a saving grace for chatty or trusting spouses there are a few exceptions and a few risks not worth taking.  Specifically, emails sent by a husband from his work email account to his wife were held not protected by marital privilege.   Be careful what you send via work email!

It is important to keep private matters separate from business operation.  We all have occasion to communicate on matters not related to work while at work. Be strategic about the communications, the information disclosed, and the medium you use to communicate this information.  Make sure you know your company’s policies on computer use, phone use, and their rights and ownership over everything you produce, use, receive, etc.  Being uninformed can land you in a lot of trouble both with your employer and otherwise.

In U.S. v. Hamilton, the government obtained a conviction against a former Virginia Delegate for federal program bribery and extortion, relying in part on emails between Mr. Hamilton and his wife.  You have no rights to privacy in work provided spaces. This means that not even privileges that usually surmount the circumstances in which the information comes are protection.

On appeal the Fourth Circuit explained: “[T]o be covered by the [marital communication] privilege, a communication between spouses must be confidential; ‘voluntary disclosure’ of a communication waives the privilege.” Basically, Hamilton waived the privilege because the emails were sent from and received in his Newport News school system work email account. Importantly, the Court relied on a computer usage policy adopted by the school system after the events in question, but prior to the government’s investigation in 2009, which provided that users would have no expectation of privacy even as to “stored” (i.e., old, archived) emails. Hamilton expressly agreed to this policy and, thereafter, took no additional steps to secure the privacy of the emails with his wife (e.g., by forwarding the e-mails to a personal account and deleting them from the work account). As a result, Hamilton waived the marital communication privilege.

The company reinforced the fact that company computers and networks are to be used for business purposes only through their policy on work email account not being private and the property of the company.  This is why its important to read and know your companies policies on all things but especially electronic information and social media because it is such a new and pervasive area of everyday life.   Moral of the story, know company policies and keep the electronic sheet secrets/pillow talk on your own, personal e-mail accounts and devices!  Or even better return to traditional means and have that conversation in the confines of your own home.

 

 

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