Earlier this year, German data protection authorities issued guidance (in German) for companies regarding monitoring employees’ work email account and Internet usage. The guidance establishes a framework based on the German Federal Data Protection Act (“FDPA”) and whether the employer allows employees to use their work email and Internet services for personal use. Where personal use is prohibited, the data protection recognize a greater scope for monitoring. The guidance also recognizes that employers may randomly check employees’ Internet use to ensure it is being used only for business purposes. Further, employers may access an employees’ sent and received emails during a long absence if required for business purposes.
The European Court of Human Rights (“ECtHR”) ruled earlier this month that an employer’s monitoring of an employee’s personal emails in a work-related Yahoo account was not a breach of the employee’s Article 8 privacy rights (“the right to respect for private and family life, the home and correspondence”). The court’s ruling was not a general approval of employee monitoring, but was dependant on several critical facts, including the employer’s policy completely prohibiting personal communications on work accounts, and the limited nature of the monitoring into only the work account.
Although a frequent topic of discussion on Capitol Hill, no single standard for private-sector cybersecurity programs has yet to emerge. The National Institute of Standards and Technology (NIST) Cybersecurity Framework is often considered foremost among existing guidance, but several other agencies are also expressing views, including the following recent guidance from the Department of Justice (DOJ), the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC). Significantly, both the DOJ and FTC tout the advantages of cooperating with law enforcement after a data breach by noting that such cooperation may lead to “regulatory” benefits.
EU data protection laws are being used by data protection authorities to challenge the legitimacy of whistleblower hotlines established in accordance with the US Sarbanes-Oxley Act of 2002 (SOX).