Because no school district policy prohibited him from accessing the eMail of others and because prosecutors could not prove messages were intercepted in transit, a former Pennsylvania school district technology director was acquitted. He had faced charges that he violated state wiretapping laws by stealing a supervisor’s eMail messages.

The judge’s decision leaves open the question of whether school technology personnel have a legal right to access the electronic communications of others–and it underscores the need for schools to set clear policies in this regard.

Former West Chester Area School District employee Martin Friedman was cleared on May 12 of all 90 counts against him–including 60 felony charges–after a Chester County judge found the district attorney’s evidence failed to prove Friedman’s guilt beyond a reasonable doubt.

The technology director was accused last year of stealing eMail messages sent to the account of assistant superintendent Nan Wodarz, his direct supervisor. Authorities said Friedman then faxed and mailed the messages to certain school board members–reportedly in an attempt to discredit Wodarz (“Administrator’s eMail hijacked, faxed to board members,” eSchool News, August/September 1998).

Friedman was said to be striking back at his supervisor after receiving a negative performance review. Using a laptop computer issued by the district, he allegedly accessed 30 messages originally sent to Wodarz from unnamed sources between May 5 and June 16, 1998.

On the felony charges, the court’s decision hinged on whether Friedman “intercepted” the messages while they were in the act of being sent.

“In this case, the Commonwealth has failed to prove that the defendant intercepted the contents (of the messages) contemporaneously and simultaneously with their transmission,” said Chester County Pleas Court Judge Juan Sanchez, who rendered his verdict in a non-jury trial.

“No evidence exists on this record to establish that (Friedman) seized the eMails while actually in transmission,” the judge added.

Both Pennsylvania law and the Federal Wiretap Act, upon which the judge’s ruling was based, require the “interception” to occur at the same time as the transmission.

That left Friedman facing 30 misdemeanor charges for having illegally accessed stored electronic information.

Those charges, too, were dismissed by Judge Sanchez in what could provide a valuable lesson for school districts and businesses alike.

Though “extremely troubled” by some of Friedman’s actions, Sanchez said the prosecution’s case was hurt because of the school system’s “lack of written guidelines specifying the employee’s exercise of his broad employment responsibilities and authorities.”

As the district’s technology director, one of Friedman’s duties was to monitor the school system’s computers.

The authority to monitor the computers is one thing, testified West Chester schools Superintendent Janet Shaner; accessing the information inside the computers is another.

But defense attorney Robert J. Donatoni successfully argued that the school district’s policy regarding the technology director’s authority to access stored information was unclear and did not “exclude the right to access” eMail.

Assistant District Attorney Susan Fields, who described the intent of Friedman’s actions to the court as “pure evil,” expressed her disappointment following the case.

“It was uncharted territory in the law,” Fields told the Legal Intelligencer. “We thought we put on a good case.”

Despite her disappointment, Fields indicated that an important lesson can be gleaned from the verdict.

“I’m hopeful that the public is now aware of the issue,” Fields continued, “and we would encourage all businesses and companies to look at the job description of their system administrator so that the job can be clearly defined and very specific regarding their authority.”

If he had been convicted, Friedman would have faced a maximum sentence of seven years in prison and a $15,000 fine.

West Chester Area School District

http://www.wcasd.k12.pa.us