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Employer Prevails, But First Circuit Raises Questions Over Use of Screenshot Capturing Software

    Client Alerts
  • September 05, 2018

Most employers understand that with appropriate disclaimers, they have the right to monitor employee use of the company’s electronic communication systems. With that said, unhappy employees continue to attempt to use federal anti-hacking statutes to claim violation of their rights when employers actually look at the employees’ online behavior. Last month, the First Circuit Court of Appeals found that a plaintiff had not demonstrated such violation, but the court opened the door to claims in other situations.
In Boudreau v. Lussier, the defendant’s IT manager inadvertently discovered evidence that the plaintiff was viewing child pornography online while at work. At the company president’s direction, he installed screenshot capture software on the plaintiff’s computer that provided images of what the plaintiff accessed if he used certain keywords. This evidence was provided to law enforcement, and the plaintiff eventually pled to possession of child pornography. He then sued his former employer, alleging that the screenshot capture software violated a provision of the federal Electronic Communications Privacy Act (ECPA) that prohibits contemporaneous interception of electronic communications.
The First Circuit affirmed dismissal of the claims on summary judgment. The court concluded that the plaintiff failed to introduce expert testimony demonstrating that the software in question actually resulted in contemporaneous capture of the images – and not just acquisition of the images for later review. On this technical ground, the court decided that the plaintiff had not met his burden of proof.
Even though the employer prevailed, this case raises warnings over the use of certain electronic monitoring software or devices. The ECPA provision in question prohibits actions akin to old fashioned wiretapping, whereby an employer could monitor employee communications in real time without disclosing its intent to engage in such monitoring. Use of such surveillance software should be thoroughly vetted by legal counsel before it is installed by employers. The ECPA contains civil and criminal remedies against both companies and individual managers.