The question was: What are the legal ramifications (real or potential) of a keyboard entry capture program installation on corporate desktops? Do civil issues exist? Must one have clear evidence of wrong-doing before silent installation? If keyboard capture programs intercept electronic communications such as e-mail during the transmission process and unless an exception is applicable, they constitute a wiretap under 18 U.S.C. 2510 et. seq. Wiretapping employees or anyone else with a reasonable expectation of privacy can be a criminal offense as well as a civil wrong exposing the person who does it to being sued. Corporations typically obtain the "consent" of their employees to intercept such communications either by having employees sign a form explicitly acknowledging the corporation's right to all information on or transmitted through its computers, or they claim an implied right to such information by posting a "banner" on the computer screens of the employees saying employees have no expectation of privacy whatever in any data stored on or transmitted through the company's computers. Recently the 9th Circuit published a decision which interprets the wiretapping to cover stored electronic communications as well as communications-in-transmission. This decision was not expected and the Court is being asked to reconsider its decision. See Konop v. Hawaiian Airlines, 236 F.3d 1035 (9th Cir. 2001). Dick Richard Murray Assistant U.S. Attorney Western District of Michigan 330 Ionia N.W., Suite 501 Grand Rapids, MI 49503 616-456-2404 ----------------------------------------------------------------- This list is provided by the SecurityFocus ARIS analyzer service. For more information on this free incident handling, management and tracking system please see: http://aris.securityfocus.com
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