OPINION AND ORDER

Woburt, Presiding Judge

    This is an appeal from an order of the Howard County Circuit Court, Judge Laura McNeil, granting defendant-appellee's motion for summary judgment on the causes of action against it. The pleadings and documents filed in this case reveal the following facts, which largely are not in dispute.

    John Harper is an employee of Magnum Corp., which is incorporated as a for-profit corporation in the State of Marshall. The company provides an internal digital telephone system installed by the Marshall Telephone Co. with voice mail capabilities so that if an employee's phone is not answered after 4 rings the automated program is activated. A recorded greeting, which can be supplied by the particular employee, instructs the caller, whether the call is from inside or outside the company's system, on how to reach someone for immediate assistance or to leave a voice mail message for the person called. John Harper recorded the following greeting:

Hello, you've reached John Harper's voice mail. I'm away from my desk but you can leave a message for me after the beep. If you need help now, punch 7 for an operator.

    Employees can gain access to their voice mail messages by dialing into the system from their own extensions and entering their personal passwords. They can also gain access from another extension within the company offices by dialing into the system and entering their own extension number in addition to their password. The system permits an employee who has received a voice-mail message to forward that message to another telephone extension at the company, either with or without a message from the forwarding employee included.

    Pursuant to the advice of its general counsel, the company announced a policy of monitoring phone calls for business purposes. A copy of the announced policy is posted in the employee lounge The announcement, says:

Employees are to use the Magnum Corp telephones for company business. Employee phone conversations will be randomly monitored by the Chief Information Officer (CIO) to determine whether telephone service is abused and business calls are handled properly. We will not monitor personal calls, but only a limited amount of use for personal matters will be permitted as deemed reasonable by the CIO. The CIO will initially caution an employee who has violated company phone policy but will take no further action unless the employee's conduct is repeated or constitutes a threat to person or property.

    Harriet Stowe is the Magnum CIO in charge of all the company's information systems, which include rather sophisticated electronic data bases and networks and connection to the Internet, as well. It is common knowledge among Magnum employees that Stowe has been so busy with the computer network that phone calls have not been monitored on a random basis for more than a year; and no employee has ever received a caution notice in the four years that the phone policy has been in place.

    June Harper, age 22, is John's young sister. The two are very close and June frequently seeks John's advice on personal matters. On the evening of April 1, 1997, June had her first date with one Randy Morton, also an employee of Magnum, whom John had introduced to her. Randy was to take her out to dinner that night and he went to June's apartment to pick her up for the date. He brought gin and tonic water with him and suggested that they have some drinks before going to dinner. June agreed, and they had a few drinks. Randy became rather forward and kissed and fondled June, over her protest. June resented his advances and finally succeeded in convincing Randy to leave, terminating their date for the evening. June was distraught over the encounter.

    June called her brother the next morning but John was away from his desk. She left a voice mail message for John, the relevant portions of which are set out here:

Hi, John, it's June. Sorry to bother you at work but I've had an experience that has really freaked me out and I need some advice on how to handle this situation. I was too upset to go to work so please call me at home as soon as you can. You remember introducing me to Randy Morton, the supervisor who works in your department? Well, we had a date last night -- the first one, and....

    June continued by recounting in specific detail the events of the previous evening, including descriptions of the sensuous way Randy had kissed her and the parts of her body, including breasts and other very sensitive areas, that had been touched offensively. It is unnecessary here to repeat more of the specific content of June's message other than to note that near the end of the lengthy message she also said that "Randy bragged to me that the girls in his department don't object to his style of kissing and petting."

    On that day, April 2, 1997, Stowe made a call to John Harper. He was not at his desk and she received the recorded greeting. When she tried to leave a message for him a system announcement interrupted and said, "We're sorry, but this person's mail box is full. Please call later." Stowe was curious about this because the system would record up to 30 minutes of voice mail and she knew that Harper was not on vacation. Stowe dialed into John Harper's voice mailbox, using her monitor's password. When she reached this message she listened to all of it and then tape-recorded the message on her own recorder.

    Concerned about Morton's conduct, Stowe set up a meeting with the company's personnel director, its general counsel and the Chief Operating Officer. She played the tape of June Harper's message for them, but after discussion the group decided to recommend no action against Morton. In the days after the meeting, word of the call and its contents spread throughout the company, though all participants at the meeting on April 2, denied having disclosed the information to anyone. A number of employees made some sarcastic comments about June to John, who told her what had happened.

    In August, 1997, plaintiff filed this action in three counts, the first seeking damages pursuant to Sec. 2707 of the Electronic Communications Privacy Act, and the second and third seeking damages for invasion of privacy by intrusion into seclusion and publication of private facts, respectively.

    The lower court held that Sec. 2511(2)(B)(d) of the ECPA permitted employers to monitor employee phone calls so plaintiff had no cause of action under that law. As to the privacy claims, the Court held that the intrusion claim failed because the plaintiff left a recorded message and thus could not have an expectation of privacy, and that even if there was private information involved there was insufficient publication of the information to support the third count.

    We agree with the court's decision. With respect to the first count under the ECPA, though it is not without merit for defendant to assert that the ECPA does not apply to voice mail in the first instance, if the Act does apply then the law permits monitoring of calls by an employer, certainly when the conduct of one of its supervisory employees is the subject of the call.

    As to the privacy counts, the common law of Marshall has recognized generally the four categories of the tort of privacy as set forth in the Restatement of Torts, 2nd. This is a case of first instance in Marshall regarding claims of privacy violations through telephone voice mail. However, plaintiff cannot claim an intrusion upon privacy when she consents to leave a recorded telephone message. And, the lower court was correct in concluding that there had been insufficient publicity given to the information at issue to constitute a violation of the branch of the privacy tort known as "publication of private fact." The information was relayed only to other employees of the company.

    Accordingly, this Court affirms the order of the Howard County Circuit Court, Judge Laura McNeil, entering summary judgment in behalf of the defendant on all counts of plaintiff's petition.

Herrick, J., and Ruebner, J., concurring.

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