Just a thought, you may want to review an article by Timothy Carroll in 
the Metropolitan Corporate Counsel magazine's August 2007 issue, titled 
IMs as ESI: When to Save Instant Messages and How to Properly Authenticate 
Retained IMs.

In there he had a very interesting paragraph which read, in part:

Federal Electronic Communications Privacy Ace (ECPA) protects against 
unwarranted interception or retreival of electronic communications.  Title 
1 of the ECPA, known as the Wiretap Act, makes it a crimanl offense 
to "intentionally intercept []...any wire, oral or electronic 
communications".  Because IM chats are conversations occuring in real 
time, similar to telephone calls, an employer's monitoring of IM 
conversations may also implicate the provisions of the Wiretap Act.

I thought it was a very interesting argument and just thought I would pass 
it along.

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