A church and its pastor
and staff have recently been held liable by a federal district court
in Wisconsin for electronic eavesdropping on an office phone
extension and for accessing a youth pastor’s email without
permission. The church fired the youth pastor for engaging in
homosexual activities and the youth pastor sued the church, senior
pastor, administrator and secretary for violating federal and state
electronic privacy laws and for defamation and invasion of privacy.
Where the Church Went Wrong
The church secretary and business administrator listened in on an
office extension to a youth pastor who was having a sexually graphic
telephone conversation with a male friend. The youth pastor was
confronted and appeared suicidal so the police were called and the
youth pastor was involuntarily committed to a hospital for
observation. The youth pastor was suspended but refused to resign,
claiming that he was counseling his college roommate who was having
sexual problems. The church hired a computer consultant to open the
youth pastor’s email on a church computer to check for improper
contacts with minors. This led to the discovery of nude male photos
and homosexual correspondence. The church changed the youth pastor’s
email password and continued to monitor his email. The youth pastor
claimed that the emails were planted. The matter was brought before
the congregation for a vote using the illegally obtained information
as grounds for termination of employment. The youth pastor denied
the allegations. The congregation voted 91 to 43 to terminate the
youth pastor’s employment.
What the Church Should Have Done
Once the staff determined that the phone call was personal and did
not involve a minor, they should have immediately stopped
eavesdropping on the call unless the youth pastor had given the
church permission to monitor his private calls. The staff aggravated
the violation by revealing the private conversation in a public
meeting where the youth pastor claimed they had misconstrued his
role in the conversation. Before accessing the youth pastor’s email
and changing his password, the church should have obtained
permission to do so.
Electronic Eavesdropping is a Felony
Electronic surveillance may subject the church and its pastor and
staff to civil money damages as well as up to 5 years imprisonment
or a fine or both.
How to Protect the Church
Consent is a defense to an invasion of privacy or electronic
surveillance claim. After evaluating the church’s position on church
monitoring and employee privacy, each church should establish
written notices, policies and procedures as well as obtain written
consents from all employees if a church wishes to have the right to
monitor personal communications and activities on church property,
including the use of church phones, computers, voicemail, faxes, and
email. Obtaining signed written consents should be a part of the
hiring process. However, special consideration may be needed for
existing employees in order for a new policy to be enforceable as to
them. Each church’s situation is unique. A plan should be adopted
and implemented with the advice of legal counsel.
The Wiretapping Laws
The federal Wiretapping Act prohibits the intentional interception
of any oral, wire or electronic communication. The court noted that
the church permitted personal calls at work and ruled that the
church did not have a right to eavesdrop once it confirmed the call
was personal and did not involve a minor. The church had an
obligation to stop eavesdropping once the staff determined the call
was personal. Statements in Church Meetings are Protected. The
defamation claims against the church and senior pastor were
dismissed because statements made in board or congregational
meetings are conditionally privileged under the common interest
privilege of members of a religious association where the subject is
the qualifications of its officers and members. The privilege may be
forfeited by making knowingly false statements during meetings. The
court ruled that it was for a jury to decide whether the secretary
and administrator had knowingly made false statements about the
youth pastor’s role in the call.
Eavesdropping is Permitted to Protect the Church
The “business extension” exemption allows a business to
electronically eavesdrop where the conduct is in the ordinary course
of business and serves a legitimate business or legal interest.
Unless an employee consents to electronic eavesdropping, it is
illegal for a church to eavesdrop on its employees except in the
ordinary course of business where the church has a business reason
or legal interest to protect. If the youth pastor’s sexually
explicit call had been with a minor rather than an adult, then the
church would have a legitimate interest to protect, namely both the
safety of the minor and the potential liability arising out of any
sexual interaction between the youth pastor and a minor. Courts have
held businesses liable for abusing the business extension privilege
where electronic eavesdropping was excessive or involved monitoring
calls of a primarily personal nature. The Impact of the Ruling on
California Churches. Although a Wisconsin federal district court
decision is not binding on courts in other states, this ruling
should be given serious attention because:
(1) Federal Wiretapping laws
govern conduct in California;
(2) The California constitution provides very broad protection
for personal conduct and intimate decisions that are entitled
to be made without observation or interference, as well as
protecting against the dissemination or misuse of sensitive
confidential information; and
(3) California’s slander and libel laws render it unlawful to
make an unprivileged false statement that has a tendency to
injure or damage another.
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We are unable to predict how this
case would have been decided if the Wisconsin church had raised a
1st Amendment defense, i.e., the church has a right to terminate
clergy for any reason without interference from the courts. Since
the youth pastor did not sue for wrongful termination, but rather
for illegal conduct that preceded the termination, it is unclear
whether the 1st Amendment defense would be deemed to apply to such
conduct. Keep in mind that the 1st Amendment is not a defense to
wrongful termination of non-clergy employees.
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