The IT Law Wiki


McLaren v. Microsoft Corp., 1999 WL 339015, 1999 Tex. App. LEXIS 4103 (Tex. App.-Dallas May 28, 1999).

Factual Background[]

McLaren was an employee of Microsoft Corporation. In December 1996, Microsoft suspended McLaren's employment pending an investigation into accusations of sexual harassment and inventory questions. McLaren requested access to his electronic mail to disprove the allegations against him. According to McLaren, he was told he could access his e-mail only by requesting it through company officials and telling them the location of a particular message. By memorandum, McLaren requested that no one tamper with his Microsoft office workstation or his e-mail. McLaren's employment was terminated on December 11, 1996.

Trial Court Proceedings[]

Following the termination of his employment, McLaren filed suit against the company alleging a claim for invasion of privacy. In support of his claim, McLaren alleged, on information and belief, that Microsoft had invaded his privacy by “breaking into” some or all of the personal folders maintained on his office computer and releasing the contents of the folders to third parties. According to McLaren, the personal folders were part of a computer application created by Microsoft in which e-mail messages could be stored. Access to the e-mail system was obtained through a network password. Access to personal folders could be additionally restricted by a "personal store" password created by the individual user. McLaren created and used a personal store password to restrict access to his personal folders.

McLaren concedes in his petition that it was possible for Microsoft to "decrypt" his personal store password. McLaren alleges, however, that by allowing him to have a personal store password for his personal folders, McLaren manifested and Microsoft recognized an expectation that the personal folders would be free from intrusion and interference. McLaren characterizes Microsoft's decrypting or otherwise breaking in to his personal folders as an intentional, unjustified, and unlawful invasion of privacy.

In response to McLaren's petition, Microsoft filed a special exception, original answer, and affirmative defenses. Microsoft specially excepted to all Petition allegations that purport to state a cause of action for tortious invasion of privacy arising out of Defendant's alleged breaking into and publication of information contained within electronic-mail folders that were part of an electronic mail system owned and administered by Defendant and made available for Plaintiff's use only in connection with his employment by Defendant. Microsoft contended that the common law of Texas does not recognize any right of privacy in the contents of electronic mail systems and storage that are provided to employees by the employer as part of the employment relationship. Microsoft requested that McLaren be required to replead and, if he refused, that his claims be dismissed.

McLaren responded, arguing that Microsoft's special exception relied on facts outside the pleadings and was, therefore, an impermissible demurrer. The trial court granted Microsoft's special exception and ordered McLaren to replead his petition to eliminate all statements claiming tortious invasion of privacy in connection with the facts currently alleged in the petition. The court further ordered that, if McLaren failed to replead his claims, the case would be dismissed in its entirety. McLaren did not replead his petition and, on April 10, 1997, the trial court signed an order dismissing the case with prejudice.

Appellate Court Proceedings[]

McLaren appealed the trial court's order of dismissal. After reviewing McLaren's petition, the appellate court concluded that the facts stated in Microsoft's special exception accurately reflect the allegations in the petition and were not extrinsic to the pleadings. The court ruled that to the extent that Microsoft's memorandum in support of its special exception stated facts outside the pleadings, there was nothing in the record to indicate that the trial court relied upon or even considered these facts in reaching its decision. As such, the appellate court concluded that trial court did not erroneously grant a speaking demurrer.

The trial court apparently reached the conclusion that, accepting as true all of McLaren's factual allegations, his petition did not allege a cause of action for invasion of privacy.

At issue was whether McLaren's petition stated a cause of action under an Intrusion upon seclusion tort. There are two elements to this cause of action: (1) an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person. When assessing the offensive nature of the invasion, courts further require the intrusion to be unreasonable, unjustified, or unwarranted. This type of invasion of privacy is generally associated with either a physical invasion of a person's property or eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying.

In his petition and on appeal, McLaren contended that the fact that the e-mail messages were stored under a private password with Microsoft's consent gave rise to a legitimate expectation of privacy in the contents of the files. As support for his position, McLaren relied on K-Mart Corp. Store No. 7441 v. Trotti.[1]

In Trotti, the court considered the privacy interest of an employee in a locker provided by the employer to store personal effects during work hours. The court began its analysis by recognizing that the locker was the employer's property and, when unlocked, was subject to legitimate, reasonable searches by the employer. But, the court concluded, when, as in Trotti, an employee buys and uses his own lock on the locker, with the employer's knowledge, the fact finder is justified in concluding that the employee manifested, and the employer recognized, an expectation that the locker and its contents would be free from intrusion and interference.

McLaren argued that the locker in Trotti was similar to the e-mail messages in this case and only that the technology is different. The appellate court disagreed because the locker in Trotti was provided to the employee for the specific purpose of storing personal belongings, not work items. In contrast, McLaren's workstation was provided to him by Microsoft so that he could perform the functions of his job. In connection with that purpose and as alleged in McLaren's petition, part of his workstation included a company-owned computer that gave McLaren the ability to send and receive e-mail messages. Thus, contrary to his argument on appeal, the e-mail messages contained on the company's computer were not McLaren's personal property, but were merely an inherent part of the office environment.

Further, the nature of a locker and an e-mail storage system are different. The locker in Trotti was a discrete, physical place where the employee, separate and apart from other employees, could store her tangible, personal belongings. The storage system for e-mail messages was not so discrete. As asserted by McLaren in his petition, e-mail was delivered to the server-based “inbox” and was stored there to read. McLaren could leave his e-mail on the server or he could move the message to a different location. According to McLaren, his practice was to store his e-mail messages in “personal folders.” Even so, any e-mail messages stored in McLaren's personal folders were first transmitted over the network and were at some point accessible by a third-party. Given these circumstances, the appellate court could not conclude that McLaren, even by creating a personal password, manifested — and Microsoft recognized — a reasonable expectation of privacy in the contents of the e-mail messages such that Microsoft was precluded from reviewing the messages.

The appellate court noted that even if they were to conclude that McLaren alleged facts in his petition which, if found to be true, would establish some reasonable expectation of privacy in the contents of his e-mail messages sent over the company e-mail system, the trial court’s judgment would still be affirmed because from the facts alleged in the petition, a reasonable person would not consider Microsoft's interception of these communications to be a highly offensive invasion. As set forth in McLaren's petition, at the time Microsoft accessed his e-mail messages, McLaren was on suspension pending an investigation into accusations of sexual harassment and inventory questions and had notified Microsoft that some of the e-mails were relevant to the investigation. Thus, the company's interest in preventing inappropriate and unprofessional comments, or even illegal activity, over its e-mail system would outweigh McLaren's claimed privacy interest in those communications. The appellate court therefore overruled the second point of error and affirmed the trial court's judgment.


  1. 677 S.W.2d 632 (Tex. App.-Houston 1st Dist. 1984) (full-text).