Workplace Privacy and Technology: Legal and Ethical Issues presented

1. Workplace Privacy and Technology: Legal and Ethical Issues presented CS 340

2. Employee Monitoring Not a new concept, changing methods • Now impacts both blue & white collar workers Computer monitoring • More precise, more detailed, unseen • The workplace as a “panopticon” • Stats: • 76% E’er monitor Internet use • 65% block some sites • Why monitor? p. 176 • Guard trade secrets • Prevent abuses of computer resources • Performance evaluations • Liability for harassment • http://www.gfi.com/whitepapers/Internet_Monitoring.pdf

3. Monitoring Methods • Keystroke quotas • “electronic sweatshop” • Phone call monitoring • #, length, duration, idle • Location monitoring • Even on break, who with • Argument that this brings up privacy issues • E’ers say not an issue this is their job • Employee Internet Management software • http://www.workexaminer.com/ • http://spector360.com

4. Case Study: Newport Electronics • Pp. 186-8 • Fired for an unsent letter • Questions: • Was Julie treated fairly? Why or why not?

5. Does the 4th Amendment not apply? • A right to be secure against …. unreasonable searches and seizures

6. Comparing US and European polices • US focus is on ownership of resources • Issues relate to finding the balance between an organization's legitimate business interests and an accommodating an individual's privacy interests. • Continental Europe • Focus is on human dignity and the idea that worker’s dignity must not be different because the worker is at his/her place of work. • Italian prohibition of most remote surveillance • French Labor Code, Article 120-2, bars measures that are not justified by the nature of task or proportional to the objective of the business

7. Cases asserting employer rights to read email • Bourke v. Nissan, www.loundy.com/CASES/Bourke_v_Nissan.html • Smyth v. Pillsbury, www.loundy.com/CASES/Smyth_v_Pillsbury.html • Much emphasis is placed on the E’er ownership of the equipment the E’ee is using. • Cts may rule differently if there is evidence E’er was trying to “snoop on personal, union or whistle-blowing activities.”

8. City of Ontario, CA v. QuonUS S. Ct. June 2010 • Please read opinion at: • http://www.law.cornell.edu/supct/pdf/08-1332P.ZO • City provided txt msg pager to police officer • Previously, City had announced a Computer Usage, Internet & Email policy, specifingE’ees to have no expectation of privacy or confidentiality.

9. Quon cont’d • Pager provided thru Arch Wireless; unlike computers. City told Quon & others they’d treat txt msgs like email. • Policy was when E’ee went over could write a check instead of having msgs audited. Continued. • Eventually so many officers went over the monthly limit, the chief looked into this to see if the limit was too low (work-related) or if these overages were due to personal messages, and transcripts of msgs were obtained.

10. Quon cont’d (2) • With the audit found that many were not work-related and some sexually explicit. • IA received transcript & compared it to Quon’s work schedule times & dates. • Aug: 456 msgs, 57 work related • Avg 28/day, 3 work related • Disciplined • Joint lawsuit alleging 4th Amendment violation & SCA by obtaining and reviewing transcript of messages. • Important point: 4th amendment challenge may be appropriate here b/c government entity acting as Quon’s employer.

11. Quon cont’d (3) • Lower Cts: • District: if audit was to determine if wasting time, unconstitutional; if to ensure officers not paying hidden fees, constitutional. Jury decided what purpose was; said it was to gauge efficacy or char limits, & therefore constitutional. • COA: search had legitimate purpose but was not reasonable in scope; could have been performed in a way that did not violate 4th Amendment rights. Court found violation.

12. Quon cont’d (4) • At S Ct: determining whether Quon had a reasonable expectation of privacy • Impact on reasonableness of Quon’s expectation of privacy • Did the overage policy of check writing change the Computer Use policy? • Warrantless searches can be ok under 4th amendment for exigent circumstances or special needs that are non-investigative in nature. • What evaluating the char. limit a special need?

13. Quon cont’d (5) • Holding: • “Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.” • “This Court has ‘repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.’”

14. Quon cont’d (6) • Statement of Law: • “Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of JUSTICE SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.”

15. Workplace Privacy & Employee Monitoring • Please read and study Fact Sheet 7: • http://www.privacyrights.org/fs/fs7-work.htm