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Network & Systems Management
F E A T U R E  
Monitoring and Privacy: Is Your Head Still In the Sand?

  June 25, 2001
  By Sean Doherty


We give out personal information every day. Between our birth and death records, we dispense an avalanche of information to the government, businesses and other organizations in return for employment or services. For example, we provide detailed information to schools, banks, state departments of motor vehicles, health providers and insurers, and in return we receive an education, bank accounts, a driver's license and health care. We also establish relationships and accounts with vendors and service providers in exchange for discounts and promotions. Businesses thrive on having such customer information.



In turn, we are observed and monitored every day. Only the high cost of persistent, systematic surveillance systems prohibits their widespread use in public places today. And without the aid of machines, the observers quickly forget what they saw and rarely collect and correlate data for later use. In the future, security checks like the one at Super Bowl XXXV -- in which hidden cameras scanned the faces of arriving spectators and compared their portraits with photos of alleged criminals -- may be commonplace.

When the setting changes from the public to the private-sector workplace, however, monitoring takes on a different significance. Enterprises can and often should monitor their employees in the ordinary course of business.

Workplace Monitoring vs. Privacy Rights

Enterprises are not in business to monitor their employees. Doing so takes time and money. Organizations must, however, protect their investments, assure employees of a safe and hospitable working environment, and assess the quality of services to customers, and monitoring can help achieve those goals. The American Management Association's survey on monitoring and surveillance earlier this year found 30.8 percent of respondents' companies monitored Internet connections, and 54.1 percent monitored stored e-mail messages. If there were other ways to guard an enterprise from theft, employee misconduct and unauthorized use of company property, and provide quality assurance, the enterprise would find them.

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Employers, however, should not expect employees to check their privacy rights at the door of the workplace. Employees' expectations of privacy stem from an individual's general "right to be left alone." Today, most states recognize the right to privacy by statute or common law and prohibit, among other things, the public disclosure or revelation of private facts, under tort law (the 1977 Restatement Second of Torts 652A). The common law is based on court decisions that apply the facts of the case at hand with those of previous cases. Some states, including California and Tennessee, go further and provide a right to privacy in their state constitutions. In many cases, the U.S. Constitution or federal law also may apply to curb the misuse or abuse of personal information and check an intrusive monitoring system. However, there is no guarantee that the courts would side with an employee in a privacy dispute.

Yet even without a constitutional or federal guarantee of privacy in the workplace, courts will seek a balance between employees' privacy rights and the employer's right to conduct and manage the business. In some cases, courts have found that an employer's actions -- for example, installing video cameras in bathroom stalls and changing rooms -- were outrageous and unlawful invasions of privacy under federal or state laws. In other cases, courts have found the employer's action justified, outweighing the privacy interests of the employee. For the most part, this has been the case for electronic monitoring.

Businesses have always monitored employees to ensure acceptable levels of performance. At one time, shorthand was measured by the minute, and mechanical keystrokes were counted using cyclometers. Today, work can be tracked electronically, computer-generated statistics can be used for performance appraisals, and telephone calls can be monitored for quality assurance.

There are also compelling reasons to monitor e-mail. A fast, easy and inexpensive way to communicate in the workplace, e-mail also is a durable and persistent business record that can lead to potential liability if not used in a responsible manner. For example, e-mail messages provided evidence both for and against Microsoft in the government's antitrust lawsuit against the company. And last year, messages posted to an Internet bulletin board were sufficient evidence to allow a sexual harassment suit to proceed against Continental Airlines. To date, electronic monitoring in the workplace has been limited by the time and labor necessary to work with inadequate tools and by the legal and social implications on employees' rights to privacy. But, as the Bob Dylan song goes, "the times they are a-changin'."


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