SCN: Privacy

[Steve]

x-no-archive: yes

=========================


(Carl S. Kaplan, NY Times)---If you use a computer at work to send e-
mail or surf the Internet, you may be aware of a legal principle that 
seems to have sprung up overnight: You have no right of privacy in 
on-the-job online communications.   

If you haven't heard about this new legal rule of thumb, chances are 
your employer has. A number of courts in recent years have given 
the rule their blessing. One respected judge and writer on Internet 
topics, however, begs to disagree.   

According to Judge James M. Rosenbaum, chief judge of the United 
States District Court for the District of Minnesota, in Minneapolis, the 
new "legal principle" of carte blanche employer searches of worker 
computers ought to be further examined.   

In a provocative and mercifully brief essay recently published in 
The Green Bag, a literate and entertaining law review, Judge 
Rosenbaum expressed uneasiness with the widely-accepted 
proposition that employees have no rights in the face of what he 
termed "an electronic rummage through their lives."   

"The present concept permits - and even encourages - 'Big Brother' 
searches," wrote Judge Rosenbaum. "Most employers are not 
governmental entities, so constitutional search and seizure issues 
are not directly implicated. But just as an employee does not 
surrender all privacy rights on the company's premises, so they 
should not be automatically surrendered on the company's 
computers."   

The new legal rule in Judge Rosenbaum's cross hairs seems to flow 
from the idea that a company that owns a computer also owns 
what's in it. The theory has an important consequence. It entitles 
employers to search employees' hard drives and other corporate 
computer records for any reason without restriction.   

That's good news for companies that wish to detect and stop 
productivity losses, guard against potential hostile workplace 
lawsuits or limit the risk of the transfer of trade secrets. But what 
about the right of an average, imperfect employee? Must he live in 
fear that someday his boss, without notice, will search his computer 
and find evidence of some minor wrongdoing -- repeated visits to 
L.L. Bean -- or an unpopular notion written in e-mail.   

"I have, happily, never sneaked around in the other computers in my 
building," wrote Judge Rosenbaum. "But if the others are anything 
like mine each hard drive contains at least a bit of idle stuff. And if 
this is so, each employee stands subject to a search which goes, 
without restriction, far beyond any legitimate business interest."   

Companies seem to be exercising their "right" to snoop. According 
to a report distributed earlier this month by the Privacy Foundation, 
a privacy watchdog based in Denver, up to 14 million U.S. workers 
are subject to continuous surveillance of their e-mail and Internet 
use. That means roughly one of every three of the 40 million 
employees using e-mail or the Internet on the job are monitored 
systematically, the group said in a statement accompanying the 
report.   

In addition, a study released in the spring by the American 
Management Association, a New York-based management 
development and training non-profit, concluded that more than three-
quarters of major U.S. firms now spot-check their employees' phone 
calls, e-mails, Internet activities and computer files. The figure has 
doubled since 1997, driven principally by employer concerns about 
liability for workplace harassment, said Eric Rolfe Greenberg, the 
group's director of management studies.   

In his article, "In Defense of the Hard Drive," Judge Rosenbaum 
cited an example of what he thought to be an overly broad search -- 
a 1999 probe by The New York Times Company of employee 
computer records at its office in Norfolk, Virginia, that handles most 
of the company's personal records, accounting and payroll 
operations. Following its investigation, 23 workers at the Norfolk 
office were dismissed for sending what were considered obscene 
messages. Judge Rosenbaum noted in his essay that the 
"nettlesome" sexual messages were "unearthed" as a result of a 
separate investigation concerning another employee matter.   

Kathy Park, a spokeswoman for The Times Company, said that the 
company stands by its 1999 actions, which were in keeping with its 
e-mail policy that, in part, bans the creation, forwarding or display of 
offensive or disruptive messages. She added that the company 
does not conduct random searches of employees' computer files but 
only searches if a complaint has a reasonable basis.   

Of course, many other companies or government organizations 
have fired people for what is contained in their e-mail, or because of 
unauthorized visits to inappropriate Web sites. Last month, for 
example, the Associated Press reported that more than 20 state 
employees in South Dakota were fired or disciplined for violating 
rules on Internet use. The action came in the wake of an 
investigation by state officials of the state government's top 100 
Internet users, according to the news report.   

Recognizing that there must be a better balance between an 
employer's concerns for proper computer use and the employee's 
interest in personal privacy, Judge Rosenbaum proposed in his 
article a "cyber time-out." He said that an employer with a "definable 
reason" to examine an employee's computer ought to be permitted 
to do so. But prior to the search, the employer ought to give the 
worker notice of its concerns, perhaps 72 hours before the actual 
snooping. 

During the time-out, the worker can seek legal redress, if any, seek 
to limit the search, or even attempt to resolve matters. If the 
examination proceeds, the employee or a representative should be 
able to attend. Perhaps most importantly, once the subject of the 
search has been refined, the examination must be restricted to the 
noticed areas -- stored information beyond its scope is out of 
bounds.   

In a telephone interview, Judge Rosenbaum, a witty and down-to-
earth Reagan appointee who has been on the federal bench since 
1985, said that his proposal would inject "a modicum of process" 
into the searches. "It would give the person some notice, give him 
an opportunity to make some decisions . . . and it would restrict the 
company to what it is looking for, so they can't go see if someone 
has a boyfriend or mistress if they are looking whether someone is 
stealing money."   

Judge Rosenbaum said that he is surprised that there has been 
such an "uncritical acceptance" of the proposition that because a 
company owns the computer they have a right to all its contents. "If 
that's true, then why can't a company come into your house and get 
everything you ever wrote on a company pad with a company 
pencil," he said. "It's the same logic."   

"I think we are just following these things like a bunch of lemmings 
right now," he said. "I'm just trying to suggest other ways of 
thinking. I'm not looking to stimulate new lawsuits. We have plenty 
of those in the store."   

The essay on hard drive searches is the second contrarian piece 
that Judge Rosenbaum has penned for The Green Bag. His first 
article, published last year, argued that a computer's permanent 
memory is a flaw that undermines its value and endangers its 
human masters. That article, "In Defense of the DELETE Key," as 
well as his current essay, will be cited in an upcoming chapter on 
electronic discovery in Moore's Federal Practice, a multi-volume 
treatise on civil and criminal procedure that is updated regularly and 
sits on the shelf of every law library in the nation.   

Gregory Joseph, a New York lawyer and a member of the editorial 
board of the treatise, said that Judge Rosenbaum's article on 
workplace surveillance had "an interesting point of view."   

"Just because a company owns a computer, they can look at 
everything you write on it?" asked Joseph. "That's not a rational 
position but it is one that we uncritically accept," he said.   


Copyright 2001 The New York Times Company  





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