1998 John Marshall National Moot Court Competition in Information Technology and Privacy Law

Bench Memorandum: Whether the Monitoring and Recording of a Voice Mail Message in the Work Place Constitutes a Violation of the Electronic Communications Privacy Act or an Invasion of Privacy


George B. Trubow, Mark A. Herrick & Laura McFarland-Taylor


VOL. XVII • Winter 1999 • NO. 2 (table of contents)

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In this moot court competition bench memo, the Supreme Court the state of Marshall has to decide whether the monitoring and recording of a voice mail message in the work environment constitutes a violation of the Electronic Communications Privacy Act ("ECPA") or an invasion of privacy. Plaintiff's brother is an employee of a for-profit corporation that provides a digital telephone system that allows employee use features such as voice mail. Employees can access their voice mail both at their desks or other location within the company. The company, however, implements a policy of random phone conversation monitoring to avoid abuse of the system and gives the Chief Information Officer (CIO) sole discretion to monitor such conversation. The policy states there will be no monitoring of personal calls, but only a limited amount of use for personal will be permitted.

Plaintiff called her brother at his work one morning and left a lengthy and somewhat detailed description of her encounters with her date, her brother's supervisor in the department. The message includes an alleged sexual assault that happened to plaintiff the night before. The CIO gained access to the message without notifying plaintiff or plaintiff's brother and, due to the seriousness of the allegation, made the message public. Consequently, plaintiff sued the corporation for violation of ECPA and two common law torts.

In deciding this case, the Court needs to further discuss several sub-issues. First, whether did plaintiff give consent to such monitoring. Second, whether voice mail messages are considered as telephone conversations as defined in the monitoring policy. Third, whether the CIO "intercepted," instead of monitored, the voice mail message before plaintiff's brother retrieved the message. Fourth, whether plaintiff could argue "stored message" provision if she did not specifically address it in a notice pleading jurisdiction. Fifth, whether plaintiff can succeed in establishing two common law torts: intrusion upon seclusion and public disclosure of private facts.

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