Hopefully, no readers are surprised to learn that their work emails and instant messaging transmissions lack a legal expectation of privacy from their employer.  Besides the fact that this is 2024, I’ve written previously about how employees should assume their work communications are monitored and act accordingly.

With that being said, I think the conventional wisdom among employees goes something like this: “I get that my employer can monitor my communications in theory, but with the sheer volume of email and messaging traffic that occurs each day, my communications are private by default simply because no one has the time to read them all.”

That may have been a fair assumption absent a specific reason – like a Human Resources or Internal Security investigation – for your employer to monitor your communications.  But it also may no longer be valid.

According to recent news reports, numerous employers are now using Artificial Intelligence (AI) applications to do the heavy lifting that would previously have been impossible for a human.  These AI programs scan employee emails and messages sent on Slack or similar internal messaging platforms to identify potentially problematic content based on keywords and even tone.

The disgruntled employee who may resort to workplace violence, vandalism, or theft of intellectual property is an obvious target.  But so too are the employees carrying on an affair, conducting personal business on the clock, engaging in sexual harassment, or doing just about anything else that may run afoul of company policy.  Incidentally, all these activities could also run afoul of the National Adjudicative Guidelines for Security Clearances, which are broadly and subjectively written, rendering them open to differing federal agency interpretations.

The phenomenon is still very new, but it is only a matter of time before AI makes its debut in security clearance denial and revocation cases.  When it does, it will undoubtedly prove itself a valuable tool in the government’s ability to detect and develop evidence of clearance-holder misconduct.  It will also be challenging to defend against, as business records are generally admissible into evidence in legal proceedings and can’t be cross-examined like a witness.

The lesson here for clearance holders is that it is becoming increasingly difficult to pull one over on “the man” while on the clock.  Employers have always been watching, but their aspirations of oversight were limited by the realities of budget and manpower.  With those factors now out of the equation, employees should ensure that their work emails and internal messages conform to company policy and are otherwise unassailable.

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied.  Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

 

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Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/practice-areas/security-clearance/.