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October — December 2008

“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.

David Maggin is the Founding Managing Director of Triumph PC Group.

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