SCN: Re: Anti-union boss searches workers' home computers with court's okay (fwd)

[Scot Harkins on SCN.org]

Howdy,


As far as the current law goes, searching a computer is largely equivalent
to searching a file cabinet.  There may be a great deal of content that is
not relevant to the case, and that is left alone.  Of course, in the case of
copying the contents of a hard drive, they have made copies of the entire
virtual file cabinet, including non-relevant documents.

While Earnst and Young was chosen by Northwest, they are acting under the
court's orders, and are thus agents of the court, even if on behalf of
Northwest.  They must report to the court, not Northwest.  I don't know that
they cannot tell Northwest what they find, but I do know they'll have to
report to the court with any potentially relevant evidence.

There's a fair amount of precedence in place now regarding the seizure and
search of computers, and this case appears to fall within those boundaries.
The defendants are alleged to have been proposing illegal activities against
Northwest (the sick-out, which is against federal labor laws in this case).
If they actually made specific plans for a sick-out they may be subject to
criminal prosecution for conspiracy to commit a crime.

This is not to say we don't need legislation to cover privacy issues.  Many
businesses, especially large corporations, have been known to bully
employees in ways are that are unfair and unethical, making a good case for
making those "ways" illegal.  (Yes, I know many corporations get away with
illegal acts as well; so do lots of folks.)  We are a democracy, and we can
decide whether these things should be protected.

Still, computer law is not isolated in legal code, so committing a crime
with a company computer is the same as committing a crime with a company
car.  Committing a crime with a private computer is still a crime.
Directing that crime (or the threat of a crime) against an individual or
company makes you civilly liable (provided they can prove damage).

The question here is a matter of speech, too, as regards business speech or
political speech.  Is speech with regards to work, when made outside of
work, subject to free speech protections?  If a person says "we ought to
have a sick-out", does that make them subject to disciplinary action?  It's
important to note what a person says.  Encouraging a sick-out is one thing,
actually planning one is another.  One might get you fired for promoting a
poor work environment (without even touching what Northwest does to poison
its own work environs).  The other is a crime.

I am personally in favor of increased protection with regards to searches
and seizures, including specific guidelines and penalties, with particular
respect to privacy.  People need to know that while they may be required to
hand over their personal computers and other personal affects (documents,
items, and so on) in a civil case their rights are centrally protected by
the court.  In the case of the E&Y searches, everything suspected relevant
should be passed directly to the court, who will then rule on the relevance
of the item in question, without letting either side see what's being
reviewed.  Non-relevant evidence should be destroyed and assurance of that
should be given to the court as part of the record.  Agents acting on the
court's behalf, like E&Y in this case, should be bonded (I'm sure E&Y is in
any case).

We also need to make sure we have clear boundaries for free, general speech,
and speech that is related to meaningful associations.  You _can_ be fired
for a bad attitude (if your contract allows it), and that may be evidence of
such an attitude.  As to using the court to discover evidence of that,
well...

Don't panic, yet.  The sheriff's not going to come get your PC at the drop
of a hat.  Courts have to be convinced that evidence may exist, and the
convincing has to be done with supporting evidence.  The question in that
case really comes to whether we trust the courts to protect the rights of
all the parties.


Scot

--
Scot Harkins (KA5KDU) | Systems Administrator, Thurman Ind, Bothell, WA
North Bend, WA        | Native Texan firmly planted in Western Washington
scoth at bigfoot.com     | SCA: Ld. Scot MacFin, Barony of Madrone, An Tir
scoth at scn.org/msn.com | URL <http://www.bigfoot.com/~scoth>
----- Original Message -----
From: "Lorraine Pozzi" <femme2 at scn.org>
To: <scn at scn.org>
Sent: Thursday, February 24, 2000 10:27 AM
Subject: SCN: Anti-union boss searches workers' home computers with court's
okay (fwd)


>
> FYI -- sorry if this is common knowledge already.  I thought JJ's
> scenario about seizure of SCN computers was a little far-fetched,
...




* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
==== Messages posted on this list are also available on the web at: ====
* * * * * * *     http://www.scn.org/volunteers/scn-l/     * * * * * * *