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Workplace Privacy and TechnologyWorkplace Privacy and Technology

Caylen TichenorCaylen Tichenor

Oconee RESAOconee RESA

Defining PrivacyDefining Privacy

Privacy is the right to be left alone.Privacy is the right to be left alone. Louis Brandeis and Samuel Warren Louis Brandeis and Samuel Warren

“Harvard Law Review” December 1890.“Harvard Law Review” December 1890.

Defining PrivacyDefining Privacy

Defining Case #1 Defining Case #1 Roberson vs. Rochester Folding Box Co. 1902Roberson vs. Rochester Folding Box Co. 1902

Invasion of privacy exists only when there is Invasion of privacy exists only when there is maliciousness or direct monetary gain. maliciousness or direct monetary gain.

Defining CasesDefining Cases

Defining Cases Defining Cases 22 Boyd vs. U.S. 1886Boyd vs. U.S. 1886 33 Union Pacific Railway Co. vs. Botsford Union Pacific Railway Co. vs. Botsford

1891.1891. 44 Myer vs. Nebraska. 1923Myer vs. Nebraska. 1923 55 Pierce vs. Society of Sisters. 1926Pierce vs. Society of Sisters. 1926 66 NAACP vs. Alabama. 1958NAACP vs. Alabama. 1958 7 Jones vs. U.S. 19607 Jones vs. U.S. 1960 88 Griswold vs. Connecticut 1965Griswold vs. Connecticut 1965 99 Katz vs. U.S. 1967Katz vs. U.S. 1967

Defining CasesDefining Cases

1010 Stanley vs. Georgia. 1969Stanley vs. Georgia. 1969 1111 Roe vs. Wade 1973Roe vs. Wade 1973 1212 O’Connor vs. Ortega. 1987O’Connor vs. Ortega. 1987 13 Skinner vs. Railway Labor Executives 13 Skinner vs. Railway Labor Executives

Assoc. Assoc. 1989.1989. 1414 United States vs. Maxwell, 1996United States vs. Maxwell, 1996 1515 United States vs. Simons, 1998United States vs. Simons, 1998 1616 United States vs. Smith, 1990United States vs. Smith, 1990 1414 Kyllo vs. Oregon 20001Kyllo vs. Oregon 20001

Current definition of PrivacyCurrent definition of Privacy

Privacy is a situational right. Privacy is a situational right. Definition depends on type of privacy.Definition depends on type of privacy.

Information privacy- deals with personal data.Information privacy- deals with personal data. Bodily privacy- deals with our physical self.Bodily privacy- deals with our physical self. Privacy of communication- deals with mail, Privacy of communication- deals with mail,

telephones and other forms of communicating.telephones and other forms of communicating. Territorial privacy- deals with workplace or Territorial privacy- deals with workplace or

domestic privacydomestic privacy

Current definition of PrivacyCurrent definition of Privacy

Privacy is a inferred right.Privacy is a inferred right. Not found in Declaration, Constitution or Not found in Declaration, Constitution or

Bill of Rights.Bill of Rights. Outlined by Justice Douglas in Griswold Outlined by Justice Douglas in Griswold

vs. Connecticut. 1965.vs. Connecticut. 1965.

10th amendment

1st amendment

3rd amendment

4th amendment

5th amendment

9th amendment

NAACP vs. Alabama 1958

Stanley vs. GA. 1969

Griswold vs. Connecticut 1965

Kyllo vs. Oregon 2001

Current definition of PrivacyCurrent definition of Privacy

Privacy is a conditional, situational, Privacy is a conditional, situational, implied, right.implied, right. Protects against “unreasonable” Protects against “unreasonable”

searches and seizures.searches and seizures. Protects against “self’ incrimination. Protects against “self’ incrimination. Is determined by type of privacy meantIs determined by type of privacy meant Is not a total right. Is not a total right.

So What?So What?

Basic premisesBasic premises

Everyone is entitled to a “zone of privacy”.Everyone is entitled to a “zone of privacy”. Zones of privacy depend upon:Zones of privacy depend upon:

Environment.Environment. Situation.Situation. Need to know.Need to know.

Once information is disseminated it can not be Once information is disseminated it can not be considered private.considered private.

If an object is in plain view, it’s seizure is not If an object is in plain view, it’s seizure is not considered a invasion of privacy. considered a invasion of privacy.

Only an individual who is the victim of the search Only an individual who is the victim of the search or seizure if permitted to challenge it. or seizure if permitted to challenge it.

O’Connor vs. Ortega. 1987O’Connor vs. Ortega. 1987

5-4 decision by the courts5-4 decision by the courts Search warrants not needed by employers.Search warrants not needed by employers. ““Reasonable expectation of privacy”Reasonable expectation of privacy” Reality of workplace may make some Reality of workplace may make some

expectations unreasonable. expectations unreasonable. Must be addressed on a case by case Must be addressed on a case by case

basis. basis. Rights may be reduced by procedures. Rights may be reduced by procedures.

Skinner vs. Railway Labor Skinner vs. Railway Labor Executives Assoc. 1989.Executives Assoc. 1989.

Expectations of privacy by employees Expectations of privacy by employees engaged in an industry regulated to engaged in an industry regulated to ensure safety are diminished. ensure safety are diminished.

Testing procedures pose only limited Testing procedures pose only limited threats. threats.

Rights of the individual are Rights of the individual are superseded by the rights of the superseded by the rights of the organization to conduct business. organization to conduct business.

United States vs. Maxwell United States vs. Maxwell 19961996

Implicit promises or guarantees of Implicit promises or guarantees of privacy by commercial entities do privacy by commercial entities do not guarantee a constitutional not guarantee a constitutional expectation of privacyexpectation of privacy

Messages that are sent to the public Messages that are sent to the public at large (i.e. chat rooms) or from at large (i.e. chat rooms) or from correspondent to correspondent lose correspondent to correspondent lose any semblance of privacy. any semblance of privacy.

United States vs. SimonsUnited States vs. Simons

Employee cannot maintain Employee cannot maintain expectation of privacy when there is expectation of privacy when there is a monitoring policy in place. a monitoring policy in place.

If the policy mandating supervision of If the policy mandating supervision of appropriate use to the administration appropriate use to the administration a search is justified at its inception. a search is justified at its inception.

Workplace privacyWorkplace privacy

The needs of the business outweigh The needs of the business outweigh the privacy of the individual.the privacy of the individual.

Burden of proof is on employee.Burden of proof is on employee. Must prove “invasiveness.”Must prove “invasiveness.” If there is no “reasonable expectation If there is no “reasonable expectation

of privacy” there is no fourth of privacy” there is no fourth amendment protection. amendment protection.

Workplace privacyWorkplace privacy

Consideration of a reasonable Consideration of a reasonable expectation of privacy depends on:expectation of privacy depends on: Who owns the system.Who owns the system. Who has access to the systemWho has access to the system Whether the system is password Whether the system is password

protected.protected. What policies and practices apply to the What policies and practices apply to the

system. system.

Specific workplace rightsSpecific workplace rights

Employers cannot eavesdrop on private Employers cannot eavesdrop on private phone calls. phone calls.

Federal law does allow unannounced Federal law does allow unannounced monitoring for business related calls.monitoring for business related calls.

If employer provides notice of monitoring If employer provides notice of monitoring and that communication systems shall be and that communication systems shall be used for business purposes only used for business purposes only monitoring of voice mail and email is monitoring of voice mail and email is permissible.permissible.

Specific workplace rightsSpecific workplace rights

Email can be treated as a written Email can be treated as a written record and as such:record and as such: Can be considered public records Can be considered public records

subject to the same open-records law subject to the same open-records law as paper documents.as paper documents.

Must be kept for same length of time as Must be kept for same length of time as paper documents – NO “deleting”paper documents – NO “deleting”

Must have space provided for them on Must have space provided for them on system servers. system servers.

Specific workplace rightsSpecific workplace rights

Telephone numbers dialed from phone Telephone numbers dialed from phone extensions can be recorded by a extensions can be recorded by a device called a pen register. It allows device called a pen register. It allows the employer to see a list of phone the employer to see a list of phone numbers dialed by your extension numbers dialed by your extension and the length of each call.and the length of each call.

Specific workplace rightsSpecific workplace rights

The employer may monitor networks and The employer may monitor networks and terminals since they own the equipment. terminals since they own the equipment.

Electronic e-mail is owned by the district Electronic e-mail is owned by the district and may be reviewed by it. This applies to and may be reviewed by it. This applies to incoming and outgoing mail. incoming and outgoing mail.

Any message posted to list serves and Any message posted to list serves and user groups are public records. user groups are public records.

A company may change its mind on A company may change its mind on monitoring e-mail without prior monitoring e-mail without prior notification. (Symth vs. Pillsbury).notification. (Symth vs. Pillsbury).

Specific workplace rightsSpecific workplace rights

There must be an “unreasonable There must be an “unreasonable intrusion” into a private place. intrusion” into a private place.

The right to privacy turns on whether the The right to privacy turns on whether the employee had a reasonable expectation employee had a reasonable expectation of privacy with regard to the area of privacy with regard to the area searched.searched.

Private” messages are not considered Private” messages are not considered private in the workplace unless there is a private in the workplace unless there is a policy that states it. policy that states it.

Specific workplace rightsSpecific workplace rights

Fourth amendment does not apply to Fourth amendment does not apply to searches by private partiessearches by private parties

Courts generally have sided with Courts generally have sided with employers who monitor or discipline employers who monitor or discipline employees over Internet use in the employees over Internet use in the office.office.

““On My Own Time” IssuesOn My Own Time” Issues

Courts may apply similar standards Courts may apply similar standards outside the office if there is a work outside the office if there is a work connectionconnection

Home email may be monitored if it is Home email may be monitored if it is on a school account.on a school account.

Internet restrictions apply at home Internet restrictions apply at home on laptops unless otherwise stated. on laptops unless otherwise stated.

Who’s watchingWho’s watching

75% of all companies use some form 75% of all companies use some form of surveillance.of surveillance.

38% of major U.S. companies check 38% of major U.S. companies check e-mail.e-mail.

54% monitor internet use.54% monitor internet use.

And what’s happeningAnd what’s happening

17% have fired employees for misusing the 17% have fired employees for misusing the internet.internet.

26% have handed out warnings.26% have handed out warnings. 20% have issued informal warnings.20% have issued informal warnings. XeroxXerox

Fired 40 workers for inappropriate use of Internet.Fired 40 workers for inappropriate use of Internet. New York TimesNew York Times

Fired 23 workers for sending potentially offensive email.Fired 23 workers for sending potentially offensive email. Arlington TexasArlington Texas

Councilwoman was forced to disclose city-related Councilwoman was forced to disclose city-related messages on her personal account because she had listed messages on her personal account because she had listed it on her business card.it on her business card.

Do you tell?Do you tell?

Determined by type of monitoring.Determined by type of monitoring. PreventivePreventive

Filters that block access to certain web sites Filters that block access to certain web sites and/or free e-mail services.and/or free e-mail services.

ProactiveProactive General record of websites visited. General record of websites visited.

AggressiveAggressive Allows employers to record pictures of screen Allows employers to record pictures of screen

activity. activity. Allows employers to record keystrokes to find Allows employers to record keystrokes to find

out where employees have beenout where employees have been

Do you tell? Do you tell?

Basic issuesBasic issues MoraleMorale

What will happen if you don’t and it gets What will happen if you don’t and it gets out?out?

Where is the trust level?Where is the trust level? SecuritySecurity

Will it drive offenders underground?Will it drive offenders underground? Will it make a real difference? Will it make a real difference?

Monitoring – The RealityMonitoring – The Reality

Monitoring exists for problem situationsMonitoring exists for problem situations Occasional use vs. excessive useOccasional use vs. excessive use Personal mail vs. anti-mail.Personal mail vs. anti-mail.

Issues arise involving:Issues arise involving: Lack of proper notification.Lack of proper notification. Misunderstanding of “private”. Misunderstanding of “private”. Lack of awareness of seriousness of issue.lLack of awareness of seriousness of issue.l

Steps to FollowSteps to Follow

Discuss privacy issues with all staff.Discuss privacy issues with all staff. Insure staff knows that all electronic Insure staff knows that all electronic

correspondence is subject to a FOI request. correspondence is subject to a FOI request. Provide training session to demonstrate Provide training session to demonstrate

capability of general monitoring. capability of general monitoring. Have in place updated “working” AUP. Have in place updated “working” AUP. Include standards for all technology not just Include standards for all technology not just

the Internet.the Internet. Handle monitoring notification separately Handle monitoring notification separately

from AUP. from AUP.

Sample Employee Notice: E-Mail UseThe ABC School District E-mail system is district property, and it is a form of official business communication. Take care to use proper grammar and etiquette in all E-mail messages. Please do not consider E-mail to be private communication and do not use E-mail for confidential communication. To ensure that the system is operating properly, the district may, from time to time, monitor and access E-mail messages. Employees must not access or read communication directed to others.

Sample Employee Notice: Internet Use

ABC School District maintains a home page on the Internet. Certain employees are authorized to access the Internet from designated computer terminals. Internet use is for educational purposes only. Do not send or receive confidential information over the Internet. Do not send, receive, or display any improper information or sexually oriented information. Please recognize that Internet communications are not private and that the use of computer terminals is subject to monitoring by the administration

SourcesSources

Smith, Robert Ellis. Smith, Robert Ellis. Ben Franklin’s Ben Franklin’s web site.web site. 2000. ISBN 0-930072-14-6. 2000. ISBN 0-930072-14-6.

Privacy and human rights 2000. Privacy and human rights 2000. Www.Privacyinternational.OrgWww.Privacyinternational.Org

Email privacy. Email privacy. www.eff.orgwww.eff.org Cyber Liberties. Beeson, Ann. Cyber Liberties. Beeson, Ann.

11/17/00. 11/17/00. www.aclu.org/issues/cyber/priv/privpawww.aclu.org/issues/cyber/priv/privpap.html.p.html.

SourcesSources

““Employee Lawsuits: Limited Right of Employee Lawsuits: Limited Right of Employee Privacy”. Employee Privacy”. www.uslaw.comwww.uslaw.com

Employee Lawsuits: Privacy in the Employee Lawsuits: Privacy in the Computer Age.” Computer Age.” www.uslaw.comwww.uslaw.com..

““Should Big Brother be Watching?” Brooks, Should Big Brother be Watching?” Brooks, Susan. Technology and Learning, Susan. Technology and Learning, November 2000. P. 22.November 2000. P. 22.

““The Privacy Practices of Web Browser The Privacy Practices of Web Browser Extensions” Martin, Smith, Brittain, Fetch, Extensions” Martin, Smith, Brittain, Fetch, Wu. Privacy Foundation. Wu. Privacy Foundation.

SourcesSources

Employee Monitoring: Is there privacy in Employee Monitoring: Is there privacy in the workplace? the workplace? www.privacyrights.orgwww.privacyrights.org..

EPIC Online Guide to Privacy Resources. EPIC Online Guide to Privacy Resources. www.epic.orgwww.epic.org..

Hubbart, William S. Hubbart, William S. The New Battle Over The New Battle Over Workplace Privacy. Workplace Privacy. Amacon Press, 1998.Amacon Press, 1998.

Hawke, Constance S. Computers and Hawke, Constance S. Computers and Internet Use on Campuse. Jossey Bass, Internet Use on Campuse. Jossey Bass, 2001.2001.

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