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[FYI] (Fwd) Email surveillance

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Date sent:      	Mon, 27 Nov 2000 09:56:48 -0500
To:             	cryptography@c2.net
From:           	"R. A. Hettinga" <rah@shipwright.com>
Subject:        	Email surveillance

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From: Somebody
To: "R. A. Hettinga" <rah@shipwright.com>
Subject: Email surveillance
Date: Mon, 27 Nov 2000 08:15:54 -0000


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Changes for draft snooping code
By Jean Eaglesham, Legal Correspondent
Published: November 26 2000 21:24GMT | Last Updated: November 27 2000

The Data Protection Commission is taking a hardline stance on its
proposals to curb employers snooping on their staff, despite pressure
from industry and a very different government approach.

Elizabeth France, the data protection commissioner, said she "could
not imagine" the commission's controversial draft code on workplace
surveillance and other data processing would "change in its essence"
when the final version appears next spring.

This uncompromising approach is a blow for industry. While the
commission says it will take account of the responses to its
consultation, business groups are lobbying for radical, not minor,
changes to the code.

They warn that the code, barring employers from opening personal
messages received at work, may force some companies to ban personal
e-mails at work altogether.

Companies that breach the code face enforcement action and potentially
unlimited fines if they fail to comply with that action. Businesses
believe this legal duty to comply with the 60-page code adds to the
regulatory burden on employers.

Industry pressure persuaded the government to back down over rules
introduced last month under the Regulation of Investigatory Powers
Act. These give employers a largely free hand to snoop, provided that
staff are warned their personal e-mails and calls may be monitored.

But Mrs France said the "perceived tensions" between the two
approaches were largely a product of "unfortunate timing" - the draft
code was issued just days after the revised RIP Act rules were
announced, and reflected an earlier version of those rules.

Mrs France said the rules and code were a "two-hurdle test", with
employers having to jump over the government's rules then the
commission's code - an analogy the Department of Trade and Industry
flatly contradicted last month.

She said: "We can't be held responsible for the nature and complexity
of the law - it's our job to try and explain it. There is a lot of law
out there - it's a matter to be addressed to government and

The commission's tough approach could also force employers to change
their e-mail systems so that - unlike now - deleted messages cannot be
retrieved from the hard disc.

David Smith, the assistant data protection commissioner, said: "Our
view at the moment is that it should be possible for someone to delete
information from the system."

The commission's concern is that it may be unfair to discipline
employees for messages they have merely received and deleted.

But businesses are likely to oppose strongly any move to ban the hard
disc back-up, which allows them to retrieve messages deleted in error
as well as to monitor staff.

NATIONAL NEWS: Employer that refused to laugh off 'joke' e-mails
Financial Times, Nov 27, 2000

Not all cases of e-mail abuse by employees are straightorward
dismissable offences, writes Jean Eaglesham. Holset Engineering
Company, a Huddersfield-based manufacturer of turbo chargers, recently
received a complaint from an employee who had been sent a "joke"
e-mail in error.

On investigation, the company found a distribution list of 40 staff
members for such e-mails. The messages ranged from a cartoon frog in a
blender to "sexually explicit cartoons, jokes and lots of innuendo",
according to Sandra Bateson, its human resources director.

All 40 employees were disciplined, with the sanctions ranging from a
severe reprimand for those who had only received the e-mails - but not
deleted or reported them - to the sack in the two most serious cases.

"We took a varied approach. For those people who had distributed the
e-mails, we looked at how many they had sent and how offensive in our
view that material was," said Ms Bateson.

The two sacked employees claimed for unfair dismissal. However, an
employment tribunal earlier this month unanimously rejected their
claim, partly because the messages were in breach of clear policies
and standards set by the company.

"It shows the importance of explaining to your employees what they can
and cannot do and of having a fair process," said Catherine Prest of
Hammond Suddards Edge, the law firm that acted for the company. "It is
a question of degree (in matching the punishment to the severity of
the crime)".

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R. A. Hettinga <mailto: rah@ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44
Farquhar Street, Boston, MA 02131 USA "... however it may deserve
respect for its usefulness and antiquity, [predicting the end of the
world] has not been found agreeable to experience." -- Edward Gibbon,
'Decline and Fall of the Roman Empire'

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