The Emerging American Approach to E-Mail Privacy in the Workplace: Its Influence on Developing Caselaw in Canada and Israel: Should Others Follow Suit?

Abstract

This article proposes a comparative inquiry into e-mail eavesdropping in the workplace, examining both the substance of the American approach to this contemporary conundrum and its potential influence on the respective evolution of Canadian and Israeli law in this area. It posits that the American view, predicated on an employment at will understanding of employment relations is ill-suited to these jurisdictions' respective legal and political culture, resembling one another in certain constitutional respects.

Canada and Israel were selected in view of their peculiar penchant for considering American jurisprudence swaying and their increasing reliance on emerging U.S. legal trends. What is more, American caselaw is clothed in additional significance in light of these countries' failure to develop their own position respecting e-mail surveillance in the employment context to date.

The following shall therefore attempt to compare the respective legal cultures and relevant juridical principles of Canada and Israel as contrasted with the United States (as opposed to merely focusing on their legal doctrines). Accordingly, the paper seeks to examine whether the more collectivist legal culture in countries that have not yet developed a clear rule on e-mail privacy in the workplace, can sustain the liberal contractarian U.S. principles referred to. This is particularly important for legal systems such as Israel and Canada, where constitutional human rights values "permeate" the "private" sphere, thus to a certain extent collapsing the "public-private" divide. Accordingly, it is submitted that communitarian legal systems, whose understanding of employee status diverges significantly from one of (quasi) absolute employer sovereignty, and who are more willing to incorporate constitutional values into their "private" law, would be well-advised to exercise caution in attempting to integrate American notions of employment-at-will to e-mail privacy in the workplace.