® BuscaLegis.ccj.ufsc.br
Right to Privacy in
the Workplace in the Information Age
Lloyd L. Rich
As traffic on the
"information superhighway" continues to explode a number of
substantive questions about the use and abuse of these information networks
arises. One issue of primary concern is whether the current law provides
adequate protection for the individual's right to privacy in the workplace from
threats posed by computer technology, electronic eavesdropping, video and sound
recording equipment, and databases filled with personal information. What are
the ramifications for an employees' right to privacy in the workplace? Does an
employer have the right to search an employee's computer files or review the
employee's electronic mail ("E-mail")?
The Right to Privacy
The right to privacy plays a
unique role in American law and society. Privacy, although not explicitly
protected by the Constitution, is considered a core value by most Americans. It
has also taken on multifarious meanings so that it no longer conveys one
coherent concept. Privacy rights, guaranteeing an individual's right to a
private life, find their authority in the Constitution, state constitutions,
federal and state statutes, and tort law judicial decisions.
When the framers wrote the
Constitution and the Bill of Rights they specifically addressed that day's most
pressing privacy fears: (1) that government would search one's home whenever it
desired and (2) the quartering of troops in the home. The framers, however,
were unable to address future changes in technology and the myriad of privacy
concerns that have evolved as new technologies permeated their way into our
society. Therefore one must ask whether the law protecting the right to privacy
has evolved with the new technologies to ensure the vitality of the Fourth
Amendment.
The Supreme Court has broadly
defined privacy as the right of the individual to control the dissemination of
information about oneself. Privacy as guaranteed by the U.S. Constitution
differs in two significant ways from privacy protected by tort law: (1) the
types of acts constituting an invasion of privacy are very different, and (2)
the type of protection provided to individuals - constitutional privacy
protects against governmental intrusion while tort law primarily protects
against invasion by private parties. Fourth Amendment privacy rights only apply
in those situations where the government is the primary actor, however it
encompasses government employees and some government contractors whose
activities might be considered as state action. Twenty-four states, including
Colorado, through state constitutional provisions or statutes protect the
individuals' right to privacy. Some of these constitutional provisions or
statutes have been held to create a civil claim for invasion of privacy by
private parties, while others have not.
The U.S. Constitutional Framework
The Fourth Amendment provides
"[t]he right of people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures ... ." Restrictions
imposed by the Fourth Amendment are effective against the federal government
while the Fourteenth Amendment imposes these restrictions on state and local
governments. The Fourth Amendment is not effective against private entities.
As a starting point it must be
recognized that electronic monitoring did not fit the traditional definition of
a search. This position changed when the Supreme Court held that electronic
listening and recording of telephone conversations without a warrant
constituted an unreasonable search and seizure that violated the Fourth
Amendment. Subsequently, when determining whether an employee has an
"expectation of privacy" the courts have employed the following
tests: (1) a subjective test which evaluates the means by which an employee has
attempted to protect his/her privacy, (2) an objective test which evaluates the
expectation of privacy an employee has in his office or desk in light of
security measures and surveillance of employees in the workplace, and (3) a
reasonableness standard which judges whether the inception and the scope of
invasion of privacy is reasonable under the circumstances and thereby attempts
to balance the government's need for supervision, control and an efficient
workplace against the employee's expectation of privacy.
Court-made and statutory law have
purported to protect a government employees' workplace privacy, however the
reality of case law is that the protection afforded to public employees for
work-related search and seizure is minimal. The seminal case with regard to the
"reasonableness standard", O'Connor v. Ortega, held that the
reasonable standard applies to supervisory searches of public employees. Ortega
stands for the proposition that if an employee has a "reasonable
expectation of privacy" then one must analyze the reasonableness of the
search under the circumstances, i.e., supervision, control and efficiency. Therefore,
a public employee has a reasonable expectation of privacy, but it is a
qualified one that is subject to the "operational realities" of the
workplace. Although Ortega only focused on public employees the decision
implied that private employees were not afforded protection.
Ortega further suggests that
E-mail would be considered an employer tool that is used by employees for
work-related communications. If this is the case, and the employer's interests
outweigh those of the employee, and privacy interests are less in the workplace
than in the home, it becomes highly likely that Ortega extends to E-mail with
the probable result that E-mail will be precluded from privacy protection.
When analyzing the results of
Ortega one needs to ask certain questions concerning future implications of
this decision in the workplace such as: (1) What is the impact upon employee
efficiency? (2) Is the employer and employee placed in an adversarial position
with regard to the issue of "trust"? (3) Will there be competitive
disadvantages for the employer? and (4) What about employee dignity?
Subsequent decisions, such as
Schowengerdt v. General Dynamics Corp., have followed Ortega and further
weakened, and possibly practically eliminated, an employee's right to privacy
in the computerized workplace. Schowengerdt held that the employee had a
reasonable expectation to privacy in work areas of exclusive use to the
employee, such as the employee's office, unless the employer had previously
notified the employee that the employee's office was subject to a work-related
search on a regular basis. The court concluded that despite the employee's
reasonable expectation to privacy in his office that a warrantless search of
the office was permissible when it was work-related and reasonable under the
circumstances.
Federal Statutes
The federal government enacted
the Electronic Communications Privacy Act of 1986 (ECPA) because the Federal
wiretap statute failed to provide sufficient protection for modern computer
transmission technologies. The primary purpose of ECPA is to provide protection
against unauthorized surveillance of electronic communications. ECPA protection
extends to textual information and transmissions of private carriers. ECPA
although not specifically providing privacy protection for E-mail systems -
court decisions have focused on cellular phone transmissions - does provide
protection from unauthorized users who break into the system, steal or
manipulate information or damage the system. One difficulty with ECPA is that
many commentators read the provider exception to exclude acts of private
employers, however, there is nothing in the legislative history that indicates
that Congress did not intend ECPA to apply to the situation where a private
employer monitored an employee's E-mail transmissions. Congress in an attempt
to close this gap introduced legislation in 1993, Privacy for Consumers and
Workers Act, that while not banning electronic monitoring, does protect
employees by granting them the right to know, i.e., the employee must be given notice,
when they are being monitored or recorded electronically by their employer
while performing their job.
The State Framework
Currently one might contend that
the best place to find privacy protection for private employees E-mail is in
respective state constitutions and statutes. The federal courts have stated
that the states may enact greater privacy protection than that required by
ECPA. Furthermore state wiretapping and eavesdropping statutes can provide
greater privacy protection than respective federal legislation. Today the right
to privacy is recognized in almost all states by statute or common law
decisions. Many states have enacted statutes that appear to protect privacy
that encompasses technology similar to E-mail. A difficulty with state court
privacy decisions is that they have traditionally favored the employer with the
effect that employees have had minimal privacy in the workplace. These
decisions have focused upon the employer's interest of assuring the work
product and protecting against theft and fraud in the workplace. Therefore one
crucial policy decision that must be resolved is whether computer technology
has so shifted the balance of control that new legislation is required to
better protect an employee's right to privacy in the workplace. One possible
starting point for this discussion is whether E-mail should be considered
analogous to mail and telephone conversations.
Since many state constitutions
are interpreted as providing greater privacy protection than the Constitution
it would not be beyond the scope of the state's highest court to regard E-mail
within the scope of a state's anti-wire tapping or eavesdropping statutes
particularly where the legislative "intent" supports such a reading
or where the state courts have implied such a reading.
The Tort Framework
It may be that the basic legal
foundation for private sector employee privacy protection is the common law of
torts, specifically privacy protection against the tort of
"intrusion". The Restatement, Second of Torts ¤ 652A provides that
"one who invades the right to privacy of another is subject to liability
for the resulting harm to the interests of the other. The right to privacy is
invaded by the unreasonable intrusion upon the seclusion of another[.]" The
Restatement should encompass electronic communications since an
"unreasonable intrusion" does not require that the intrusion be
physical.
Electronic Privacy
The framers of the Constitution
could not address the myriad of privacy concerns that evolved as new
technologies proliferated and became a part of an individual's everyday life at
home and in the workplace. Computers and digital communication technologies
present a serious challenge to our legislators, judges and legal system
requiring them to react to these new developments while constantly balancing
the individual's civil liberties and the needs of society. The court must
continuously be vigilant in balancing the rights of the employee and the
employer. This is especially necessary when a privacy cause of action involves
new technologies and a claim by the employee that his privacy has been invaded
by the employer. It becomes even more pressing when statutory or common law has
not addressed the privacy issue with respect to the new technology or the old
law does not clearly cover the issue of privacy that is at question. When this
occurs the court must decide whether the newly-created privacy issues may be
brought within the scope of protection provided by existing privacy law.
Retirado de: http://www.publaw.com