The Ethicist misunderstands the situation

In the most recent installment of Randy Cohen's column in the New York Times Magazine, the first question he chooses to answer is, uh, curiously easy:

I am an administrative assistant who is required to open and log all incoming mail except that marked "confidential." But some mail not so-marked is clearly personal, and I feel guilty reading it. My boss shrugs off my discontent. Is it ethical to read other people's mail just because it arrives at a place of business?
Anonymous, New York

Cohen, in part, replies:

Your boss's legitimate interest in tracking business correspondence does not allow him to violate the privacy of his employees, even those imprudent enough to receive personal mail at work....

Even unmarked mail is entitled to privacy, both legally and ethically. As soon as you realize that you are perusing a personal letter (possible clue: it includes a vivid description of a someone's anatomy and yours is not a doctor's office), stop reading and forward the letter to the co-worker.

The Easy Answer

Perhaps Cohen doesn't know this, but opening mail addressed to someone else is a felony. It seems to be that an ethical obligation to follow the law, even if we rate it as only a secondary duty, is clearly in force here. Furthermore, no one can compel felonious action without risk of clear and immediate harm if one does otherwise, so the boss is clearly in the wrong on this count as well.

Playing More or Less Fair

I am not a lawyer, but can imagine a tendentious legal argument¹ that by taking this job, the employees are waiving their right to privacy. Let's assume this is true somehow, so that we are in the same position that Cohen puts himself in.

There is an operative issue in the ethics of this situation: Whether the employees know that non-confidential mail will be opened. If the rule is clear, i.e., it is repeatedly and publicly stated that any mail not labeled “confidential” will be opened and logged, then it seems that the burden to label private materials fall on the sender. Writing those 12 extra letters isn't particularly difficult, and there's no real way to put the burden of determining private materials on the employer.

Also, the correspondents have an opportunity to warn one another of barriers like this. After all, who has personal correspondence with someone they don't know?

More than anything else, I'm not sure how Cohen has anything to say about this at all. The boss is clearly wrong. He could and should have closed this one with one paragraph.

---

¹ Tendentious because this is not a civil right, but a felony. If you can “give up” your right to not be the victim of a felony, we have even more problems as a society than I thought.

I make an analogy like this: We all know that of all postal employees, a very small number go crazy and shoot their co-workers. If every new hire knows that they may be shot and killed on the job before they agree to the job, and agree anyway, they've clearly waived their right to not be killed by a fellow employee.

Because the new employee tacitly consented to it, see?