Hi Linda..

The ECPA applies to public email. Courts have consistently held that employees do not have a right to privacy akin to that what is protected by the ECPA (the wire-tapping law).

In order to determine whether an employer has acted improperly, the employee first has to establish whether the s/he has a reasonable expectation of privacy. If there is a reasonable expectation and the employer acted in an unreasonable manner, the employee may have a claim. I think this sets a very high burden for a plaintiff to meet. If this hurdle cannot be met, the case will be dismissed for failure to state a claim upon which relief can be granted.

Another thing to keep in mind is that whether and employee realizes it or not, as a condition of employment, employees often waive any rights they may have regarding email. i.e., they basically say it is OK for an employer to monitor email. In the world of contracts, people expressly waive their legal rights. In these cases, while an employer does not have to do so, it simply makes their case that much more air-tight.

As far as controlling law, you have to start with the 4th. Amendment - protections against unreasonable search and seizures. All law (Federal and State) has to fit within this framework.

Looking at the languge of a statute is not enough. One needs to look at the legislative intent and how courts have enforced the statute. The first order of business is to determine whether you are in the protected class of individuals and whether the statute applies.