Imagine that one of your top salespeople leaves to go to work for a competitor. At least you had the foresight to have her sign a nonsolicitation agreement as a condition of employment. So, your customers are safe.
Then again…You have this sneaking suspicion that this salesperson may be emailing your customers to convince them to follow her to her new employer.
Oh, snap! When she returned her phone to you, she left herself logged into Gmail. What’s the harm of a quick little peek to ease your mind? How about 40 quick peaks? And while you’re at it, you forward the questionable ones yourself, after which you cover your tracks by deleting any evidence of forwarding the emails.
But, it’s all good right. After all, she’s the one who left herself logged in. It’s almost like she wanted you to look…40 times…and forward her emails…and then make like you never forwarded those emails. That has to be legal, right?
Bueller?
Well, according to a Maryland federal court (opinion here), if a company accesses a former’s employees personal email without permission, that may violate the Stored Communications Act:
The SCA is violated when a person “intentionally accesses without authorization a facility through which an electronic communication service is provided” and “thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system[.]”
To prevail on an SCA claim in this circumstance, the former employee must prove that the allegedly accessed emails were either: (a) stored on a server, like Gmail, before they have been delivered to, or retrieved by, the recipient; or (b) kept on a personal email server (such as Gmail) as a backup for emails that we already synced with her smartphone.
Yeah, it’s kind wonky. But, the point here is to resist any urge to go into an employee’s web-based email without permission. A prevailing plaintiff can recover statutory damages, receive equitable relief, and get awarded her attorney’s fees.