Shefts v. Petrakis
2010 WL 5125739
C.D. Ill.2010Background
- Plaintiff founded Access2Go, Inc. and served as President/CEO through at least Dec 22, 2009.
- Petrakis, Morgan, and Tandeski became 30% owners of Access2Go in 2006; Plaintiff retained 30% and Tandeski 10%.
- BES software and a “dummy account” were used to monitor Plaintiff's emails and texts; SpectorPro logged messages on computers.
- Access2Go Employee Manual states Company owns data and may monitor electronic communications; logging is allowed, with a Board authorization requirement for employee access to others' files.
- Court entered a TRO and later a Preliminary Injunction; imaging of hard drives revealed logged texts and emails; Petrakis and Huffman admitted reading Plaintiff's emails and texts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ECPA interception occurred when BES logged messages | Plaintiff contends logging constituted interception at logging time. | Defendants argue interception occurred at access time, not when logged. | Interception occurred at logging, but consent issues bar judgment forPlaintiff on this count |
| Whether Plaintiff had implied consent to logging of text messages | Manual did not grant consent for logging Plaintiff's texts; no notice of monitoring. | Manual and BES connection gave notice; Plaintiff knew communications could be archived. | Consent found; no summary judgment for Plaintiff on Count I |
| Whether Illinois Eavesdropping Statute was violated by Petrakis/Huffman | Monitoring via BES, dummy account, and SpectorPro violated the statute. | Plaintiff lacked reasonable privacy expectation; monitoring not surreptitious given policy and consent. | Discordant facts; summary judgment denied for Plaintiff on Count II |
| Whether SCA was violated by Petrakis | Accessing stored electronic communications without proper authorization violated SCA. | Employee Manual authorized monitoring; Access was authorized by Access2Go policy. | Authorized access; no summary judgment for Plaintiff on Count III |
Key Cases Cited
- United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (no timing requirement for an interception under ECPA)
- Beardsley, 115 Ill.2d 47 (1986) (privacy expectation under Illinois eavesdropping statute varies with circumstances)
- Ceja, 204 Ill.2d 332 (2003) (implied consent to monitoring under Illinois eavesdropping statute)
- Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (consent to recording can be inferred from request to install recording device)
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (SCA applies to private employers; monitoring authority may be implied by status as service provider)