United States: Policies And Training Critical In Managing Digital Privacy

The digital age has heralded an explosive growth in the volume of information created, stored and transmitted on computers and mobile devices, over the Internet and broadband, and on social media sites.  The same technologies that have defined the times simultaneously pose serious issues for privacy and information security.

Despite the importance of the interests at stake, no comprehensive or consistent set of rules currently govern data privacy in the Unites States.  A patchwork of federal and state statutes and cases govern different industries, various types of conduct, and different kinds of information.  These rules are frequently complex and confusing, and oftentimes fail to provide clear answers to the most pressing questions.

Though daunting, the challenges can be managed.  To effectively address data privacy concerns, a business must adopt and adhere to an effective information use policy, and then train employee about the policy and managers about the rules governing digital privacy.

While a myriad of federal and state laws touch on digital privacy, the most significant rules for New Hampshire arise out of the federal Electronic Communications Privacy Act (ECPA) and Stored Communications Act (SCA), and the state statute governing employer access to personal social media accounts, RSA 275:73-74.

The ECPA prohibits the interception of electronic communications, and the use and disclose of unlawfully intercepted data.  The statute contains two exceptions vital to businesses.  First, a business may intercept an electronic communication if at least one party consents.  Such consent can be express or implied, and an employer may establish consent with an effective information use policy.  Second, a business that hosts the electronic communications service may intercept, use and disclose communications in the course of providing the service or to protect the interests of the business.  The SCA prohibits the accessing of stored electronic communications without authorization or beyond the scope of authorization.  Like the ECPA, the SCA permits the person or entity providing the electronic communications service, including a business, to access, use and disclose stored electronic communications on its own systems.

Technological developments in the digital age have pushed the limits of the ECPA and SCA, which were enacted in 1986 – long before many such technologies existed or even could have been contemplated by Congress.  Thus, while it is clear that businesses can access email and other data created, sent, received and stored in their own systems, the proliferation of Net 2.0 technologies – like text and instant messaging, webmail (Gmail, Yahoo!, etc.), social media (Facebook, Instagram, Snapchat, etc.), Twitter and blogs – has created complicated and confusing questions for which there often are no clear answers.

For example, while a business has the right to extract from company-owned electronic devices (servers, computers, laptops, tablets, smartphones, etc.) data in the residual or deleted spaces of the devices – like screen shots of an employee's Gmail or Facebook posts – the business cannot under the SCA use the passwords for the employee's Gmail and Facebook accounts (which also commonly can be retrieved from residual space) to access those accounts directly.  Similarly, while a business has the right to confiscate a company owned computer or mobile device and then review data stored on the hard drive of the device, the business cannot under the SCA use the Gmail or Facebook application on the device to access data on the employee's online Gmail or Facebook account that is not already stored on the device's hard drive.

Though many issues under the ECPA and SCA remain unclear or unresolved, the United States Supreme Court in City of Ontario v. Quon gave businesses the following sage advice (and maybe even reliable precedent) when it comes to managing digital privacy.  It said,

"[a]n employer's policies concerning electronic communications in the workplace will shape the reasonable expectations of its employees, especially to the extent that such policies are clearly communicated."

New Hampshire entered the fray of digital privacy in 2014 with a state statute prohibiting employers from requesting or requiring an existing or prospective employee to give the employer the password or other access to the individual's personal social networking accounts.  The statute simultaneously preserved an employer's right to adopt and enforce an information use policy governing company-owned electronic devices, and to access and control social media accounts created or used for the employer's business purposes.

Each company's information use policy should be unique to its operations and tailored to its policy choices.  However, all such policies also should at least inform employees as follows:

  • whether personal use of the company's information systems is permitted and, if so, the scope of permitted personal use;
  • that an employee's use of the company's information systems is not private, and the employee should have no expectation of privacy; and
  • that the company has the right to, and does, monitor and review data created, stored, or transmitted on the company's information systems.

While digital privacy is a daunting, complicated and often confusing, a company best manages this risk by adopting and adhering to an effective information use policy, training employees about the policy and the company's technology practices, and educating managers about how to avoid infringing on the various privacy rights that exist under state and federal law.

Published in NH Bar News (4/14/2017)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions