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Fraser v. Nationwide Mutual Insurance Co.

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Under federal law, the monitoring of emails by an employer is governed primarily by the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510 et seq. Under the ECPA, the lawfulness of particular monitoring activities will depend heavily upon whether employees' messages are intercepted during transmission or are retrieved from storage on the company's server.

In Fraser v. Nationwide Mutual Insurance Co., the 3rd U.S. Circuit Court of Appeals ruled that since employee Richard Fraser's emails were stored on Nationwide's system, any search by the company was authorized by an express exemption in the federal ECPA for email service providers. The unanimous three-judge panel rejected Fraser's claim that he was wrongfully discharged in September 1998 in retaliation for his lodging complaints against Nationwide with state authorities and his efforts to get legislation passed that would have protected agents like himself from being fired for anything less than just cause.

3rd Circuit Judge Thomas L. Ambro found Title I of the ECPA prohibits only those "intercepts" that occur at the time of transmission. "Every circuit court to have considered the matter has held that an 'intercept' under the ECPA must occur contemporaneously with transmission," Ambro wrote in an opinion joined by 3rd Circuit Judges Dolores K. Sloviter and Edward R. Becker. Ambro found that Title II prohibits "seizures" of stored emails but includes an exception for seizures authorized "by the person or entity providing a wire or electronic communications service."

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