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MSUNAG  October 2001

MSUNAG October 2001

Subject:

Re: NAG discussion of A/V for Pilot

From:

Joseph Scott <[log in to unmask]>

Reply-To:

MSU Network Administrators Group <[log in to unmask]>

Date:

Mon, 22 Oct 2001 12:20:05 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (115 lines)

Hey all, thought this would be a great format to accomplish 2
things. Number one, if you have no idea who I am yet, please allow
me to introduce myself. My name is Joseph M. Scott, and I am the
new "network admin, whatever" for Housing and Food Services.
You probably all were familiar with Steven Scouten..well, I'm his
replacement.

Number two, I would like to drop my own two cents in on this.
Realistically, I have no idea why this isn't being done to start with. I
find it tantamount to lunacy that we feel that we "cannot" or are
"not allowed" to protect our systems from viruses. I'm pretty sure
that we all have some kind of anti-virus system already up and
running on whatever email package we are using internally (we run
NAV on our Pegasus email). I'm not really sure who owns Pilot, but
I am sure that each of our groups have users who use it on a
regular basis. To put it bluntly, it is a whole in the security shema
we have all attempted to setup. From what I am hearing the issue
seems to be whether or not we would be in violation of AUP by
doing so?? If this is the case, on what grounds does MSU uphold
these policies. Are they saying that by scanning the emails for
viruses that we as system admin's would be reading the emails?
Are they aware that when any programs scans for a virus, that we
do not see any of it happening, and even if we wish to monitor it
scanning we STILL would not see the email. Are they concerned
that we will write a program that will run in conjunction with the
virus scanner, or in place of the virus scanner that will allow us to
read the email. If that is what they believe or fear, I find that very
offensive. I, for one, do not like being accused low moral values by
folks whom I have never met, nor have they met me. Hey, if the
post office trusts the folks that they hire off the street to sort my
mail not to read it, you would think that MSU could trust us
proffesionally.

Ok, hard as that is to put aside, let me wonder this. Is MSU
worried that by doing any of the above we would be violating the
users 4th ammendment rights? Let me clarify something here;



Federal law: ECPA. The Electronic Communications Privacy Act
(ECPA) (18 U.S.C. §§ 2510-20; 2701-2711), is the only federal
statute relevant to claims of workplace invasions of privacy by
electronic means. The ECPA prohibits (1) unauthorized and
intentional "interception" of wire, oral, and electronic
communications during the transmission phase, and (2)
unauthorized "accessing" of electronically stored wire or electronic
communications.

For purposes of interpreting the Act, it is important to note that an
e-mail is an "electronic communication" as that phrase is defined
in § 2510. In the specific context of e-mails, it is also important to
determine whether an employer "intercepted" the e-mail while it
was being transmitted, or whether he/she "accessed" it minutes,
days, or weeks after it was stored in an employee’s computer.

The ECPA contains two exceptions that are pertinent to e-mail
communications. First, under the system provider exception, the
prohibitions on the interception, disclosure, or use of electronic
communications do not apply to conduct by an officer, employee,
or agent of a provider of electronic communication services if the
interception occurs during an activity necessary to the rendition of
the service or to the protection of the rights or property of the
provider.

Whether an employer who provides an internal office e-mail system
is completely exempted from the ECPA as a "service provider" is a
hotly debated question, and the ramifications are important. Some
commentators assert that "service providers" should include only
entities such as America Online (AOL), Prodigy, etc. Others
believe that employers who furnish their own e-mail systems are
rightfully considered service providers and thus, fall within the
service provider exception. Another theory states that even if an
employer utilizes AOL or another common carrier to provide
employee e-mail services, the employer is then considered an
agent of the service provider and is thus, subject to the exemption.

If employers are exempted under this provision, then presumably
they may monitor electronic communications in order to promote
quality control, prevent loss of trade secrets, investigate employees
suspected of wrongdoing, deter personal use of company property,
etc. To date, at least one court has held that an employer was in
fact a service provider. (See Bohach v. City of Reno, 932 F. Supp.
1232 (D. Nev. 1996)). However, in the absence of clear judicial
guidelines—or clear congressional intent, for that matter, as
disclosed by a not-very-definitive legislative history—employers
should not rely on this exception to protect their e-mail monitoring.
Rather, they should look to the following exception, which provides
clearer guidance to employers and employees regarding the
bounds of privacy that employees can expect.

Under the consent exception, an employer may intercept electronic
communications if the prior consent of one of the parties to the
communication has been obtained. (18 U.S.C. § 2511(2)(d) (1994)).
To come within this exception, an employer need only acquire the
implied or express consent of one employee in an employee-
customer or employee-employee communication. It is important to
remember that the ECPA does not preempt stricter statutes in
states, such as Maryland, which require the consent of all parties.

An employee will likely be deemed to have given consent if, having
knowledge of the employer’s policy, he or she continues to use the
e-mail system. To this end, a written policy is preferred because all
parties will have expressly consented to its terms. Even when the
policy is written, the employer would be ill-advised to monitor e-
mails to a degree that exceeds the scope of the policy. For
example, in the context of telephone calls, the courts agree that an
employer is not privileged to continue listening to conversations of
a purely personal nature. Further, a policy that merely suggests
that monitoring may be done may not be sufficient to create
implied consent.

Now I know that we have a acceptable use policy in place at MSU,
and I also know that at least for our division in order to log onto our
network you must click OK  that you have read and understand the
policy. Seems pretty clear cut to me..

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