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Employee privacy versus employer policy

US court rulings cast doubt on privacy policy

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The electronic workplace is no longer just the cubicle, desk or office. It now encompasses the coffee shop, the hotel room, the back of the taxi, the living room or bedroom. In the workplace, it also includes the water cooler, the restroom, the changing room, and other places. It's not just memos written and documents produced. It is newspaper articles read, sports scores checked, friends chatted with, lovers associated with. People increasingly are living their personal lives – including their most intimate personal lives – online, and online from within the office.

Employees traveling may use the office laptop to have a videoconference with his family, catch up with colleagues, plan a high school reunion, or even complain about problems at work with coworkers. Even unionising and organising activities may be conducted either on work property, work time, or using work supplied or reimbursed technology. The workplace itself may extend to wherever the employee can be reached by a cell phone, satellite phone, or BlackBerry. If an employee submits a hotel bill for reimbursement (including telephone and movies) that gives the employer the right to know what movies the employee is watching. Does it also give the employer the right to know the contents of the telephone call? Sure, they can decide if the call is work-related or personal, but can they arrange with the hotel to wiretap you?

In effect, we have two dichotomies in the privacy/employment context. First, the disconnect between what we say our policy is, and what we actually do. Second, the equally vast disconnect between what employees say is their expectation of privacy, and how they act. While empirically we may know that the employer could monitor us, we would likely be offended if our cubicle were wired, our keystrokes logged and captured, and our cell-phone conversations recorded.

Military intelligence

Lance Corporal Jennifer Long was issued a government computer to use on a government military network. When she was suspected of violations of the military drug use policies (and of criminal laws related to drug use), Marine Corps criminal investigators reviewed the contents of email messages she sent to another military employee who was likewise using a government issued computer over the same government network. The messages were retrieved from the government mail server and later used against Long. On 27 September, 2006, the United States Court of Appeals for the Armed forces had to decide whether Long had any expectation of privacy in these emails.

The starting point for any analysis is, of course, the DoD policy expressed on its warning banner, which stated quite explicitly:

This is a Department of Defense computer system. This computer system, including all related equipment, networks and network devices (specifically including Internet access), are provided only for authorized US Government use. DoD computer systems may be monitored for all lawful purposes, including to ensure that their use is authorised, for management of the system, to facilitate protection against unauthorised access, and to verify security procedures, survivability and operational security.

Monitoring includes active attacks by authorised DoD entities to test or verify the security of this system. During monitoring, information may be examined, recorded, copied and used for authorised purposes. All information, including personal information, placed on or sent over this system may be monitored. Use of this DoD computer system, authorised or unauthorised, constitutes consent to monitoring of this system. Unauthorised use may subject you to criminal prosecution. Evidence of unauthorised use collected during monitoring may be used for administrative, criminal, or other adverse action. Use of this system constitutes consent to monitoring for these purposes.

Seems pretty clear. No expectation of privacy. Government monitoring for any purpose. Government recording for any purpose. Government use of the recorded or intercepted communications for any purpose. Use of the system (even hacking into it) is consent to monitoring.

However, the military court, not usually known for taking a strong privacy stance against the military, found that Long did, in fact have some privacy interests in the contents of her communications. It noted that while the government said it could monitor, it rarely did. It also noted that the case was initiated when the Marine Corps Criminal Investigative Division (CID) – essentially a law enforcement agency, simply decided to inspect the servers to look for evidence of criminal activity.

As the US Supreme Court noted: "[W]hile police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct."

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