Don't Expect Any Privacy in the Workplace
By Amy Hackney Blackwell (firstname.lastname@example.org)
There's no such thing as privacy at work.
Your boss can read your email. He might be listening to your voicemails at this very moment. There could even be a hidden camera in the hallway, keeping track of your trips to the break room. Maddening? Yes. Legal? Yes.
Current electronic surveillance technology allows users to eavesdrop on all sorts of communications, from the criminal to the mundane to the deeply personal. Employers are using this technology, and the Fourth Amendment currently offers little protection.
The Fourth Amendment reads: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (For a commentary on the history and purpose of the Fourth Amendment, see http://caselaw.findlaw.com/data/constitution/amendment04/.) We have a right to expect that no one, government or anyone else, will break into our domains and punish us for our private thoughts and actions. This is the heart of all statutes and cases that deal with wiretapping, electronic surveillance and related issues.
The problem with the workplace is that it is not exactly private; the employer owns the computers, the office and the employee's work, and thus expects to be able to monitor what is done in his domain. A recent American Management Assn. survey shows that 73% of major U.S. firms perform some manner of electronic monitoring and surveillance, up from 63% in 1997.
Perhaps this is due to the higher cost of living, which forces everyone to work harder and gives employers the upper hand, and to the increasing pressure on employers to be productive, which makes them crack down with sweatshop techniques (See PBS' article). From the employee's point of view, workplace monitoring is demoralizing and insulting, and has been found to hurt performance; employees feel that their bosses have low expectations of them and perform accordingly.
Rovert Corn-Revere summed up the current state of the law beautifully on April 6 in testimony before the House Subcommittee on the Constitution. Since the 1960s, Congress has worked to protect the privacy of wire and oral communications, while at the same time balancing the rights of law enforcement officials who need to do electronic surveillance in order to perform their jobs. By the mid-80s, Congress had decided that electronic communications were not sufficiently safeguarded from government or third-party interception and passed the Electronic Communications Privacy Act of 1986. This law makes it illegal to intercept any wire, oral or electronic communication unless the people communicating have consented to the surveillance or are committing a crime. The ECPA was designed to bring new communication technologies under the auspices of federal wiretap law and to guard against the arbitrary use of government power to monitor citizens. But it is no match for the information superhighway. At the moment, the ECPA is considered a confused and ineffectual law, and advances in technology have made much of its language obsolete.
Case law is not much help. The Supreme Court has not yet addressed the issue of electronic workplace privacy; lower courts have gone in both directions, holding that some email may be monitored while finding in other cases that employers have gone too far in spying on their workers. In one case, a court held that a search of an employee's locker was unreasonable; another court said that it was okay to search an employee's lunch box.
Employers think they have good reason to monitor email, voicemail, and other parts of the workplace, virtual or physical. (See ``The Rights and Wrongs of Workplace Snooping.") If one employee harasses another through email systems, the employer will be liable; and how can the employer know this is happening if they don't monitor email? If employees use pirated software, the employer could be liable. Bosses certainly don't want employees introducing viruses into the workplace. And it's easier for a manager to supervise an employee's work if she can access that worker's files over the network.
Most monitoring of employees that employers do is currently unregulated, except by individual company policies. Aside from the ECPA, there are very few laws at either the federal or state level. In the absence of laws to the contrary, employers can listen to, read or otherwise observe any communication their employees do at work.
And there are myriad ways for employers to keep track of their people. The Counter Spy Shop sells a wide variety of audio and video surveillance equipment to a diverse clientele, including both law enforcement bodies and large corporations. The Truth Phone claims to be the first telephone that can identify lies; it records all conversations, and flashes a light if a speaker is ``lying." The Hygiene Guard monitors bathroom behavior. Some employers are even using Global Positioning Satellite (GPS) technology to track employees in company vehicles.
So what can employers monitor? Just about anything, if truth be told. Employers can monitor telephone calls with clients or customers to be sure that quality is being maintained. Conversations with co-workers are also subject to monitoring. Under federal law, employers are not supposed to listen in on personal calls, unless the company has told employees not to make personal calls from business phones.
Employers can also monitor their employees' computer terminals. They can use software that allows them to read the computer's screen and hard drives; this is generally legal since the employer owns the computer network. They can monitor the number of keystrokes entered into the computer each hour. They can track idle time on the terminal.
Email and voice mail, likewise, are usually fair game for employers to view. Though the ECPA appears to protect voice-mail messages, and says that an employer cannot read or delete messages that are in ``electronic storage," no one knows exactly what that is supposed to mean. The employer owns the messaging systems and is thus allowed to use them freely. Messages stay in systems even after employees have deleted them from their computers or telephones, often as part of the daily magnetic tape backup of the computer system. Even messages that are marked ``private" are usually open to monitoring.
The best way to balance an employer's interest in keeping tabs on the workers, and an employee's interest in privacy is for the employer to tell the employees what is subject to monitoring. Some companies have policies on privacy issues that they publish in employee handbooks, memos, union contracts or other ways. These stated policies are legally binding on the employer. Therefore, if an employer promised to notify employees when their telephone calls are being monitored, it must honor that promise. Some businesses have started using email policies.
Background checks are another issue. Employers are becoming increasingly diligent about checking up on prospective hires before offering them jobs, doing checks to fill in gaps or correct inaccuracies in the data provided by job applicants. Information sought includes driving records, vehicle registration, credit records, criminal convictions, court and education records and workers' compensation information. Most of this information is in public records created by government agencies.
While some companies use outside services to investigate new hires, more and more of them do the job in-house. Web sites such as http://www.knowx.com,http://www.informus.com and http://www.confi-chek.com make doing background checks quite straightforward. Not everything is fair game; the Fair Credit Reporting Act (FCRA), passed in 1997, has increased the consent requirements of employers who use these reports (see http://www.ftc.gov/bcp/conline/pubs/buspubs/credempl.htm).
Don't forget that the government might be monitoring your email, too. One of the latest inventions bothering civil liberties and privacy groups is the new FBI email monitoring system known as Carnivore, intended to be used in criminal investigations. When it is placed at an ISP, it scans all incoming and outgoing emails for messages that might be associated with a crime. The American Civil Liberties Union is troubled because the system reads all sender and recipient addresses and subject lines to decide whether to copy the message, and it is controlled by the law enforcement agency instead of the ISP.
Want more information? The ACLU keeps abreast of all workplace monitoring issues, and is both a good source of information and a strong advocate for privacy. The Center for Democracy and Technology works to promote democratic values and constitutional liberties in the digital age. The Privacy Rights Clearinghouse, a California nonprofit consumer information and advocacy program, is a great source of information on employee monitoring, background checks, and other issues.
Technology has made it very easy for the powers that be to keep tabs on their underlings. How much better it would be if employers chose to trust their employees, who would then know that they were respected and respond accordingly. This is not a police state, and the workplace should not be turned into a sweatshop full of spies.
Amy Hackney Blackwell is an attorney and a writer in Greenville, SC. Her legal interests include cyberspace law and international environmental issues. Her writing has appeared in publications such as Parachutist, Healing Retreats and Spas, the ABA Journal and the Chronicle of Higher Education. She also does commentaries for public radio. She has lived and worked in Japan and Europe, and speaks Japanese, French, and German.
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