After years of water cooler whispering (with raised eyebrows) and urban legends of terminated employees, savvy Internet users know not to have any realistic expectation of privacy when it comes to work-hosted email, Internet access and the like.

Is there now cause for concern when it comes to discussing work-related topics on employees’ own time on personally owned computers? The United States District Court for the District of New Jersey is taking up the case right now.

In Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008), the plaintiffs allege that their use of MySpace is protected from their employer’s prying eyes. The plaintiffs, Brian Pietrylo and Doreen Marino were terminated by Hillstone, which operates the Houston’s chain of restaurants.

Pietrylo, a bartender at Houston’s in Hackensack, New Jersey, created the MySpace user group “Spec-Tator” for the purpose of current and former employees to “vent” about their experience while working at the restaurant. Allegedly, the user group was created on personal time, and invitations were distributed on personal time. According to Pietrylo, the forum was a "nice place to vent … without any eyes outside spying on us."

One of the persons invited to the user group, which was invitation-only and required a password to enter and view, was Marino. Spec-Tator went as well as most user groups, quickly filling with complaints about the restaurant, the décor and even supervisors. Then a hostess, Karen St. Jean, let one of the supervisors in on the joke. Apparently they all had a good laugh at the site.

Soon after the sharing with a supervisor, another supervisor demanded from St. Jean her username and password to Spec-Tator. Testifying that she feared that her refusal to cooperate would affect her job negatively, St. Jean gave up her username and password. Pietrylo and Marino were fired shortly thereafter. The reason cited for their termination was violation of company policy involving "professionalism and a positive attitude."

The federal lawsuit then followed. The plaintiffs alleged that Hillstone firing them violated their freedom of speech, their common law right to privacy, the Stored Communications Act, and the New Jersey statute on unlawful access to stored communications.

On a motion for summary judgment by Hillstone, the District Court found that there was no violation of the plaintiff’s free speech, but the court did allow the plaintiff’s other claims to move forward. Additionally, the court found that the issues of privacy violations were issues for a jury because they were matters of fact.

The remaining issues appear to come down to whether Hillstone’s management gained access to the user group through coercion (by threatening St. Jean) and, if properly accessed, whether there would still be an expectation of privacy. In other words, if a jury finds that management learned of the user group because it coerced St. Jean into providing access, then there is an argument that information learned cannot be used. The Ninth Circuit has already held that the Stored Communications Act permits those persons with access to password-protected content to share access to any third person (provided that the person is actually a “user” of the site), thereby obviating any expectation of privacy in the speech contained therein. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 872 (9th Cir. 2002) (court held that the Stored Communications Act authorizes users of a web site to give permission to others to access the web site, but must actually access the web site to be a “user” under the Stored Communications Act; absent access, person has no authority to authorize a third party to access the web site).

The issue, stated another way, is that if a speaker manages to conceal his or her speech from unintended ears, then there is a much stronger argument that that speech is private and protected. However, if access to such speech is granted (properly) to those unintended readers, then the expectation of privacy is much lower.

Prior cases demonstrate that the tipping point in work-related, free speech cases dealing with personal time and/or personal computer equipment may be whether there was an explicit policy in place by the employer dealing with speech regarding work and work-related issues.

What policies does your business or employer have in place dealing with your speech on your own time?

Mark McCreary is a partner in Fox Rothschild’s Corporate Department, specializing in privacy and Internet law. If you have questions regarding this post, or any other privacy matter, you may contact Mark at (215) 299-2010 or mmccreary@foxrothschild.com.