“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.”
—The Fourth Amendment to The
Constitution of the United States of America
With
the rise of modern electronic communication technology there arises a
consequent and well-founded fear of surveillance. However, George
Orwell's 1984 passed us by without noticeable big brother control and
the national concern over espionage diminished with the demise of the
Soviet Union.
These past threats were concerns over the use of technology by
governments that had sufficient resources to use the technology for
sinister purposes. The new threat is not technology in the hands of
government, it is technology alone. What once required massive manpower,
now requires merely a personal computer. Technology has made the power
to monitor others widely available, whether to governments, private
enterprise or individuals.
An employee, by the very nature of the employment relationship, must be
subject to some level of monitoring by the employer. However, this
monitoring has limits. Courts have held that it is a tortuous invasion
of privacy for an employer to monitor employee telephone
conversions. Similarly, mail carried through the U.S. postal service is
granted a high level of protection.
However, much employee communication now takes place over private and
public networks via e-mail or voice
mail. These forms of communication are very different from telephone
calls and letters. For example, after transmission and receipt, these
communications are stored for an indefinite period of time on equipment
under the exclusive control of the employer. Additionally, these
communications can be examined without the knowledge of the
communicators.
Employees often believe that their communications are private because
they have a password which they can select and change independently or
because they are communicating through outside common carriers. Cases
have often turned upon whether this belief was reasonable given the fact
that the employer had the ability all along to access the files, though
the employees were not aware of this. In determining the outcome, courts
generally weigh the reasonableness of the
employee's expectation of privacy against the business interest of the
employer in monitoring the communication. However, it is important to
emphasize that, ultimately,
courts have traditionally held that legitimate business interests permit
employers to intercept communications.
Additionally, state constitutions might provide some protection. A
number of state constitutions provide a specific right of privacy. But
only California has specifically determined that its constitution
provides a cause of action against nongovernmental entities. However,
even in California, the courts tend to give
significant weight to the business interests of the employer.
As I've stated, much of the law of privacy in the workplace turns on the
reasonable expectation of privacy. When evaluating different situations,
it is important to keep in mind that the law in this area is a moving
target.
In the workplace, federal and state laws provide some protection to
employee communications. However, this protection is quite
limited. Until the law develops further, employers should prepare
carefully drafted Policy Statements that explain how the employer
intends to monitor employee communications. And employees, even in the
absence of such Policy Statements, would be well advised to consider
their communications available and accessible to the employer. Also,
where privacy is an issue, employees and employers can create a more
productive work environment if they work together to jointly develop a
Policy Statement that balances the legitimate interests of both the
employer and the employees.