First there is a Mountain, then there is no Mountain, then there is…

J0407504 For our purposes, substitute the word "e-mail" where you see the word "mountain".  I was reviewing an appellate decision from two months ago, Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).

The facts are simple.  The court ruled that password-protected emails from a personal account that were accessed on a company computer were not necessarily fair game for the employer.  The particular emails involved the employee corresponding with her attorney; privileged communication.

I suppose if I simply admonish you not to use your company collateral for personal purposes, you're going to ignore me, but it's missing the point, anyway.  You can't un-ring the bell.  Sure, I understand that, in this case, they were forced to return the emails and there was to be a decision as to whether the law firm that read the emails could even continue in their representation, but the bottom line is, the emails were still read.

This is purely a "Perry L. Segal" approach – and you may not agree with me – but my view is this; don't wait for someone else to do your job for you.  Don't wait for your lawyer to make an argument, don't wait for a judge to rule in your favor, don't wait at all!  Don't do the conduct with the attitude that you are the one that won't get caught or your rights won't be violated.  Gambling is great – if you're in Atlantic City.

There was a case going back 30 years or so in which hackers got into a secure computer system.  They were brought to trial and were acquitted.  Why?  Because after they hacked through the first line of defense, the screen they arrived at said, "Welcome".  The judge ruled that this was the same as an invitation to proceed…

I rest my case…

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