Privacy in the Workplace

Privacy in the Workplace and the Relation to Email and Internet Use (Free as they let you be)

Since the internet and email have become mainstream in the early 1990’s, their uses have become utilized exponentially. 1 Over 25 billion emails are sent by US businesses daily, while internet is a major source of information. 2 Online business, marketing, information as fast as your fingers can type, entertainment websites, it’s all at our fingertips! We can research just about anything through search engines such as Google and Yahoo. Businesses and individuals are connected globally through the World Wide Web. Almost all businesses use email for communication, and the internet for various aspects of business. As the use of the internet and email increases, so does the risk of potential harm to both businesses and employees.
With that potential harm, precautions are taken in order to protect businesses and employees. That means monitoring of employee email and internet use. To effectively monitor email and Internet use of employees without intruding upon their Fourth Amendment Constitutional right, can get somewhat difficult.3 The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated”. This amendment pertains to privacy and unreasonable intrusion upon personal property and information. 4 A business should properly define their expectations for the use and guidelines of the internet and email. What is defined as “reasonable” to a person, may not be the same as what is considered “reasonable” to a business. Without guidelines or policies, there is no basis on which to define or compare what is reasonable use. Therefore, companies must administer what is fair use and what is forbidden use of the company’s emails system and internet use. “Reasonable expectation of privacy prong is a difficult one because the Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed to third parties”. 5 Emails travel from one user to another, while traveling over the internet, creating a “3rd” party. “There is not constitutional protection against searches or surveillance by private corporations…in the privacy sector, privacy law is determined by a variety of federal and state statutes and by the common law of torts.”5 If an employer finds a legitimate reason for monitoring employees, the intrusion upon employees can be difficult to justify against. 6 If an employee enters a place of work, uses company equipment to obtain access the internet and send emails on company time, which is communication from one person to another on an employer’s property. This information is documented by the company’s database, tracked, and logged. It is also relayed to another person. So, when does this information turn from private to public? Most employers view this information as public.7 The expectation at most companies is that there is not expectation of privacy when using the internet and email at work. Employees are on a companies terms, on their time, and on their hardware.8 If an issue does arise, most companies can go to their stored databases of tracked internet use as well as stored emails. Depending on the situation, it could help greatly to have this documented evidence when presenting a case against and employee. Monitoring has become main stream. Nine out of ten companies that were surveyed regarding email and internet monitoring check their employees’ online activities while at work. 9 In the case of Smyth v. Pillsbury, an employee sent inappropriate and unprofessional comments from his personal computer to his supervisors work email. Smyth was terminated, retaliated with wrongful discharge, claiming that he was told that that all e-mail communications would remain confidential and management assured its employees that email communications could not be intercepted and used against its employees as grounds for termination or reprimand. 10 The court didn’t find any reasonable expectation of privacy in email communications that were voluntarily relayed to his supervisor, or assurances that the emails wouldn’t be intercepted by management. Once Smyth sent the email containing comments such as “kill the backstabbing bastards”, that was voluntarily communicated over email utilized by the company, expectation of privacy was lost.11 The court felt that there were no privacy interests or violation in regards to Smyth’s communication. Once he utilized the employer’s property for personal use and communicated information at will without being intruded upon, his information was no longer considered private. 12
When information is relayed to one or more persons, say for example a secret of some sort, generally speaking we expect that information to remain private. Can something still be private if two or more people know about it?13 Where is the legal boundary between public and private? “Information that is deemed “private” or “secret” cuts across many areas of American law, including the Fourth Amendment, trade secrets, patents, evidence, the constitutional right of information privacy, and the Freedom of Information Act.”14 American courts in general, “lack a coherent consistent methodology for determining whether an individual has reasonable expectation of privacy in a particular fact that has been shared with one or more persons.” 15
For a business to justify the monitoring of employees, to prevent potential feelings of hast against the company, some precautions should be taken. A business should make employees aware that they are being monitored. 16 It should be made clear that employees are on company equipment and on company time, so company’s expectations should be met. These policies should be within reason of respect and trust to a company’s employees. If a company is too strict, the work environment and moral could have negative impacts on business. Employees in a business may feel that their right to privacy is being intruded upon if their email and internet use is monitored. If employees feel constrained, that could affect the workplace environment dramatically. This could create a workplace that has increased stress and pressure. 17 Another symptom is a workplace that becomes hostile. Employees that feel like they are not trusted and their freedom of expression is limited, may retaliate in negative forms. These feelings could include depression, anxiety, and fatigue. 18 Sometimes personal business needs to be taken care of at the workplace such as paying bills, checking the news, or sending a brief personal email to a friend or family member. Employers should keep employees possible needs in mind while having proper surveillance to protect business and maintain a positive working environment. 19
Monitoring of the internet and email is done by computer programs, software, and other technology. Such examples of programs include Silentrunner, MIMESweeper, Websense, and countless others. 20 These programs track emails, instant messaging, filter language, block websites and emails with certain material, track internet use and sites that are visited. These types of programs can be very useful in tracking performance, productivity, possible email abuse, and other violations. In the 1995 the Chevron Corporation paid more than $2 million dollars to female employees who received emails containing pornography and discriminating material. 21 The company suffered a large financial loss due to the filters not catching the offensive material, and improper employee use of company email. If an employee spends time on the internet that is non-business related it leads to potential losses by an employer. There was a study that estimated if fifty users spent three hours a week on the internet, the potential loss to the employer is estimated at $3,322.50 per week, adding up to $172,770 per year! 22 I think it’s pretty fair to say with such information, that it is reasonable for an employer to monitor internet use since there’s a clear link between internet use by an employee and cost incurred by an employer.
Businesses that access the internet and utilize email for communication face many potential threats such as legal liability, confidentiality breaches (trademark information leaking out in an email), damage to reputation, lost productivity, and network congestion. Most of the time, employers are responsible for what is transmitted electronically from their systems, such as in the Chevron case mentioned. Employers can be held liable if an employee sends such an email or one containing a virus, which can lead to multi million dollar penalties.23 An email sent from a Borland International Inc. employee to a competitor he was going to work for called Symatec. This email contained confidential information regarding product design details, contract information, and sales information linked to a bid on a project that they were competing for. 24 Without proper monitoring, this information may not have been discovered. Another case where an email was sent across company email and created an issue was when a racist joke was sent by an employee at Morgan Stanley. Due to the company having a policy and taking care of the issue immediately, the liability for the employer was kept to a minimum and the case dismissed. 25
If an email is sent by an employee that contains offensive content, it can harm the company if it is sent to an unintended recipient or someone who is offended by it’s content. Such was the case in Bourke v. Nissan Motor Company. 26 Bonita Bourke and Rhonda Hall were employees with the Nissan Motor Company where they were customer support representatives for the users of the computer system. A co worker, Lori Eaton, was giving a demonstration on how to use the email system, and randomly used one of Bourke’s emails sent to Hall for training purposes. The email that was selected happened to be sexual in nature. Lori then reported the incident to supervisors. Based on previous documented reviews, and the incident at hand, the employees were terminated. Bourke and Hall retaliated by suing Nissan for invasion of common law invasion of privacy, violation of their constitutional right to privacy, and violation of the criminal wiretapping and eavesdropping statutes. They also stated “a cause of action for wrongful discharge in violation of public policy, that is, termination in retaliation for the filing of complaints objecting to Nissan's infringing of their privacy.” 27 The plaintiffs felt that by Nissan viewing their emails, they were subjected to unauthorized and unreasonable intrusions into their private lives. The court found in favor of Nissan on two grounds, “1)Based on the undisputed facts, the plaintiffs had no reasonable expectation of privacy in their emails 2) the plaintiffs failed to submit a separate statement meeting the Cod of Civil Procedure section 437c, subdivision (a) and Law and Discovery Policy Manual Paragraph 207.” 28 Basically, the employees were found to have no expectation of privacy. When the employees were hired, they signed a waiver stating “It is company policy that employees and contractors restrict their use of company owned computer hardware and software to company business.” 29 Due to Nissan having established policies, there was no question that the employees had violated an agreement that they promised to adhere to. Intrusion can depend on if the individual had a personal and objectively reasonable expectation of privacy which they feel was violated. If Bourke had reason to expect privacy with her emails, and the company objectively agreed that and employee had reason to expect privacy on the company’s email, then the claims of retaliation that claimed invasion of privacy could have been considered legitimate. Due to the policy agreement that was signed, both parties were assumed to be in agreement that the company email system was not meant for personal use, let alone inappropriate, unprofessional, and offensive material. 30
Someone surfing the web at work may be enticed to click on what appears to be a deal or a contest, but in all actuality it is just another scheme in the countless scams that are out on the World Wide Web.31 To demonstrate how such a scam works an ad that was posted on Yahoo! was answered. The advertisement offered to sell a 2001 Porsche Boxter for less than half it’s Kelley Blue Book value. The ad presented by the seller did not list a contact phone number, address, or any other information verifying identity. The only way of communication was via the internet or email, most likely due to the fact that the seller couldn’t be traced as easy. A meeting was scheduled, but shortly before the scheduled meeting, the seller sent an email stating that they couldn’t meet due to his wife being sick, and they had to go out of the states for a rare and expensive surgery. The seller then proceeded to state that the buyer could send a certified check to them for the merchandise. This was a scam, and not an isolated one. A harmless answer to an internet pop up ad, almost potentially led to another internet victim of a scam. The ad promoter has an undisclosed location and contact information, attempts to befriend their potential victim and assure them they can’t meet due to a family emergency, takes their certified check from their victim in which they perceive they’re getting a deal, and is never to be traced.32 With proper monitoring and protection on the internet, an employer can protect employees from potential threats that appear to be harmless, as well as the companies computer systems. Another scam utilizes a victim’s personal information to commit fraud through identity theft. A scammer sends out an email or website that resembles a legitimate website, and entices a user’s personal information through this mask deception. Proper identification, monitoring, and protection can eliminate such a hazard. Microsoft has a program to eliminate these intruders of personal privacy. The program is called a “Phishing Filter”. It’s designed to warn computer users about this type of deception, and filter potentially threatening websites and emails. The Federal Trade Commission estimates that around 10 million Americans were victims of identity theft in 2005, costing the economy close to $52.6 billion! 33 Other programs attempt to download unauthorized programs on a user’s computer, such as Spyware, which tracks a users internet activity and target markets a user with spam and tracks personal information. 34 With proper monitoring and firewalls, situations such as theft of personal information, scams, and viruses can be avoided.
“We sacrifice our privacy and the trade off is to assist in locating criminals.” 35 The internet has many ways a criminal can target victims. Through online marketing scams, a fictional contest, unauthorized downloads chat rooms, and many other venues. “Cyberspace offers unscrupulous people an entirely new venue to conduct harmful activities…”36 If not only employers, but society in general can monitor the internet and email use, it can greatly assist in criminal cases. Emails can be very helpful in tracking criminal activity such as when former president of Infoseek, Patrick Nanghton was apprehended by the FBI for crossing state lines with intent to have intercourse with a 13 year old girl. 37 The FBI monitored internet activity, checked emails and other records, and tracked chat room activity. With this surveillance, persons who seek out to perform immoral activities can be caught. The US Patriot Act illustrates how our American government adapting to how criminals and terrorists communicate via the internet and email. Increased surveillance and monitoring such as under
“Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism. Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses. Sec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications. Sec. 209. Seizure of voice-mail messages pursuant to warrants. Sec. 210. Scope of subpoenas for records of electronic communications.” 38
A proper balance should be made with tracking email and internet use of employees. A policy should be put into place that allows for employees to maintain their freedom, yet be in rhythm with the organizations goals. Monitoring computer activity has its advantages, but with too much control comes retaliation. Employers should consider the negative effects of creating a strict work environment. With so many potential harms that come with emailing and internet use, it’s a pretty good idea to have monitoring in place. As long as the employees are aware and agree that their information may be tracked and documented, there’s not too much in the argument against intrusion. It’s on company equipment, company time, and affects company dollars. Employees lose some of their freedom when monitored, but companies stand to lose a lot more if some sort of surveillance isn’t implemented. As long as it’s known, justifiable and reasonable, it’s legal for companies to monitor email and internet use. Just be careful what you type on the keyboard and where you surf while you’re on the clock, you may be explaining yourself later!

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