FOR EDUCATIONAL USE ONLY
New York Law School Journal of International and Comparative Law
2000
*379 PRIVACY OR DIGNITY?: ELECTRONIC MONITORING IN THE WORKPLACE
Lawrence E. Rothstein [FNa1]
Copyright © 2000 New York Law School Journal of International and
Comparative Law; Lawrence E. Rothstein
I. INTRODUCTION
The growth of electronic surveillance in the workplace has
been phenomenal and has created a global problem. Such monitoring through video
equipment, point of sale technologies, computer terminals, magnetic
"active" badges, pen registers, telephone recording devices and
numerical control machines now allows access to most, if not all, employee
conversations and e-mail, and in many cases can record each movement or
keystroke of an employee. [FN1] While some of this recorded
information is presently unused, employers are resorting to it more and more.
In the United States, for example, a 1987 report by the Congressional Office of
Technology Assessment estimated that six to eight million persons were
subjected to such surveillance at work. [FN2] A 1993 MacWorld study raised that
estimate to 20 million workers. [FN3] In 1996 the ACLU National Task Force
on Civil Liberties in the Workplace estimated that 40 million workers were
subject to *380 electronic surveillance. [FN4] These estimates do not include the
large number of employees subject to electronic monitoring of their telephone
usage and conversations in such fields as telemarketing, financial and
communication services. Including workers in these fields where monitoring is
the norm, the American Management Association estimated that nearly two-thirds
of medium to large businesses practiced one or more forms of electronic
surveillance of their employees. [FN5]
The concern in the two other countries considered in this Article, France and
Italy, is manifest in their progressive efforts to limit surveillance and
enhance workers' control, as will be discussed below. For example, the French
national commission charged with registering nominative treatments of data [FN6] recorded 34,426 cases in 1993, the
highest number of new cases since 1982 and a 109% increase over 1990. [FN7] Since that time annual registrations
have grown each year. [FN8] Since its inception in 1978 through
December 31, 1997, the French commission has registered over 556,000 cases of
businesses or government agencies collecting and electronically processing data
identifiable to particular persons. [FN9] Of these cases, approximately 45%
relate to employees of the organizations doing the data collection. [FN10]
This Article will undertake a comparison of the legal protection of workers
from electronic surveillance and monitoring because there is markedly less
protection in the United States than in the continental European countries. [FN11] While the difference in strength of
the U.S. and European labor movements might partially account for this, the
example of France shows that even a continental European country with low union
density provides significantly greater protection to workers than does the U.S.
A Conference Board poll of its chief executive members along with *381
their Canadian and European counterparts has indicated that, while a majority
of CEOs see electronic surveillance as ineffective and even detrimental to
employee morale, the percentage holding these opinions is much higher in Canada
and Europe than in the U.S. [FN12] At least in part, the difference in
legal protection stems from a differing conception of what values are being
protected. In the U.S. the value of privacy is most frequently mentioned with
regard to protection against surveillance; [FN13] in continental Europe (and countries
influenced by continental labor law), the value most frequently mentioned in
the electronic surveillance context is human dignity. [FN14] This Article shall argue that the
legal protection of workers from electronic monitoring would be better served
by deriving those protections from a concept of "human dignity"
rather than of "privacy." It will proceed by first sketching the
outline and origin of the two concepts and then by demonstrating their
embodiment in legal texts regarding surveillance and monitoring in the
workplace.
II. PRIVACY
The U.S. legal treatment of the concept of privacy is most
akin to the philosophical perspective outlined by Ernest Van Den Haag. Van Den
Haag's analysis exemplifies the possessive and territorial view of privacy. He
notes that "[p]rivacy is best treated as a property right. Property grants
an owner the exclusive right to dispose of what he owns. Privacy is the *382
exclusive right to dispose of access to one's proper (private) domain. [FN15] In an influential 1960 treatment,
which still captures the legal treatment of privacy in U.S. law, William
Prosser, former Dean of Boalt Hall Law School and noted commentator on U.S.
tort law, placed the legal recognition of privacy tort claims into four
categories. The one most relevant to our discussion of electronic surveillance
and monitoring in the workplace was the "[i]ntrusion upon the plaintiff's
seclusion or solitude, or into his private affairs." [FN16] The intrusion could be physical or
electronic, but it had to be into an area which a reasonable person would find
offensive or highly objectionable. [FN17] Furthermore, the person intruded
upon may lose, by consent or the existence of a special legal relationship,
their right not to be so treated. [FN18]
Privacy, in this sense, highlights a "possessive individualism." [FN19] Privacy implies notions of property,
individualism, ownership and expectations with regard to the exclusion of
outsiders without specific legal rights to the work premises. [FN20] The protection of privacy connotes
the possession by each individual of a zone of intimacy into which outsiders
are not allowed to penetrate without the permission of the individual or
without an extremely strong justification. [FN21] Privacy is associated with one's
home, with intimate relations, and with premises under a person's control. [FN22] More fundamentally, this view of
privacy stems from the individualist and property- oriented notion that an
individual is the proprietor or possessor of her or his own person and
capacities, for which nothing is owed to society. [FN23] Privacy is territorial and is seen
as a possessive right that may be alienated preemptively and wholesale. [FN24] This possessive, territorial view of
privacy finds clear expression in the workplace.
When a worker sells her capacity to labor, she alienates certain aspects of the
person and puts them under the control of the employer. Thus in the U.S.,
workers in the workplace, except occasionally in restrooms and *383
employee locker rooms, [FN25] are not generally protected from
surveillance on the grounds that the premises and equipment are possessions of
the employer and the employee can have no legitimate expectation of intimacy or
of protection from employer intrusion. The employee, in the employment-at-will
setting, has implicitly consented to the employer's right to monitor the
employee closely "for any reason, no reason, or even reason morally
wrong" [FN26] or lose her job.
III. HUMAN DIGNITY
Where Anglo-American jurisdictions emphasize the concept of
privacy in their legal protection of workers from monitoring and surveillance,
continental European countries manifest a concept of human dignity more related
to notions of community and citizenship than property. [FN27] French, Italian, German and Spanish
do not even have a direct equivalent of the English word 'privacy.' The concept
of human dignity is a social one that promotes a humane and civilized life. The
protection of human dignity allows a broader scope of action against treating
people in intrusive ways. While also concerned with intrusions upon a person's
intimacy and autonomy with regard to her or his private life, human dignity,
unlike privacy (at least as embodied in U.S. law), is primarily concerned with
actions that reduce a person's status as a thinking being, a citizen and a
member of a community. [FN28] As Alan Westin stated in his earlier
work linking autonomy and dignity to advocate attention for privacy protection:
autonomy is grounded in a "fundamental belief in the uniqueness of the
individual, in his basic dignity and worth as a creature of God and a human
being ..." and results in "the desire to avoid being manipulated or
dominated wholly by others." [FN29] At work, human dignity is denied by
treating the employee as a mere factor of production with fixed capacities and
vulnerabilities determining her behavior and ignoring both the worker's
individuality in the *384 face of statistical probabilities and
the human potential to overcome or compensate for physical obstacles. [FN30] The worker's dignity is denied when
she is treated as a mechanism transparent to the view of others at a distance
and therefore manipulable or disposable without the ability to confront the
observer. [FN31]
Since the 1970s, while in practice a zone of intense conflict, French labor
relations and labor law have focused on the notion of the enterprise as a
community and employers and employees as citizens of that community with both
rights and duties. [FN32] Of course, what community meant to workers
and employers was different. But both views stemmed from the measures seen as
necessary for healing the scars of the political upheaval of 1968 and for
heading off a left-wing victory at the polls in 1974. [FN33]
For the worker, the enterprise community meant the workplace. This was a
specific location where the employee's work and an extremely important network
of social relations were found. Self-discovery and self-fulfillment were
fundamental goals to be sought in the workplace in this social network. Like an
echo of the demand for worker self-management of the 1960s, workers would come
together in the workplace, form strong social bonds, and assert their collective
power to create a community that served both their human and economic ends. [FN34] While the worker might subordinate
herself to the employer by consent, that subordination was only for the purpose
of performing work-related tasks. As stated in an influential 1992 report by
the dean of French labor lawyers, Gerard Lyon-Caen, beyond the narrow confines
of that subordination "in the rest of his life the worker *385
remains free ... even during the execution of his work." [FN35] Furthermore, Lyon-Caen argued,
fundamental rights and liberties, particularly those that could be considered
rights of personality, [FN36] cannot be abrogated by the worker's
consent or be alienated: "For his salary the worker exchanges services,
which are defined by the employer, but which leave intact a core which
corresponds, in a given epoch and a given civilization, to the idea of human
liberty." [FN37] In particular, this meant the liberty
and the necessary conditions for French workers to form and maintain strong
social bonds at work with their comrades and to act collectively to influence
the organization and pace of work. [FN38]
The enterprise community, for the employer, was a much more paternalistic
concept. [FN39] It stressed the role of the employer
as the head of the community, while conceding the duty of the patron to limit
such brutal and impersonal actions as mass layoffs and the duty to consult with
workers prior to major changes in the work processes or terms of employment. In
addition, for the first time, employers, hoping that this would give them more
flexibility, recognized the legality of workplace union organization and the
possible utility of collective agreements at the plant level. The employers
assumed that the interest of the enterprise community, for which all should
loyally strive, was the economic success of the business. The Socialist
electoral victories of 1981 and the long tenure of Socialist President
Mitterrand meant that the workers' viewpoint would have some influence over the
law and jurisprudence. [FN40]
The Italian Workers Statute of 1970, [FN41] legislation also following a major
political upheaval, the "hot summer" of 1969, affirmed even more
strongly that the worker in the workplace enjoyed a right of personal dignity
and an autonomous private sphere of action. According to influential Italian
legal commentators, the rationale underlying the Workers Statute was that the
worker at work remains a human being whose fundamental rights and human *386
dignity must be maintained. [FN42] The notion of dignita humana in the
workplace encompassed freedom of expression, autonomy and freedom from control
by unidentified, impersonal or covert mechanisms. [FN43] Article 4 of the Workers Statute,
prohibiting the electronic surveillance of workers, arose from the idea that
human dignity required that any monitoring of a person be undertaken by a
person, not an impersonal machine. [FN44] Monitoring, even by persons, must
also be overt and not hidden, and proportional to a legitimate business end. [FN45] Human dignity was preserved when the
worker was able to confront the monitor, explain her activity to the monitor,
understand the monitor's perspective and influence the monitor by collective
action. Thus for the worker to maintain human dignity, she or he must be able
to confront the human dignity of the monitor. [FN46]
In France and Italy, unlike the U.S., there is legal recognition that private
power is as much an attack on dignity and liberty as is public power. [FN47] In the U.S., for example, certain
protections related to privacy in the Fourth Amendment are held to apply only
against government action. [FN48] Furthermore, the trend with regard
to public employment in the U.S. has been to reduce worker protections of
privacy and autonomy to those found in the private sector. [FN49] In France, on the other hand, the
trend has been the reverse. [FN50] The French Civil and Labor Codes now
limit the restriction of constitutional rights and liberties by anyone (i.e.
public or private persons). [FN51] One French commentator has noted
that the law "considers that the *387 employee, although
subordinated to the employer, always remains a free citizen whose fundamental
rights do not disappear when he is at his job." [FN52] Similarly, the Italian Workers
Statute expressly refers to rights against government enshrined in the 1948 Constitution
and applies them to workers in both the public and private sectors. [FN53] Also, like the U.S. Constitution, it
leaves much room for judicial interpretation. [FN54]
IV. FRENCH LAW AND JURISPRUDENCE
In France the use of electronic technologies to monitor work
activity is framed by three laws: the Law on Data Processing and Liberty, [FN55] which regulates all automated
treatments of data that identifies individuals; the 1970 amendment to Article 9
of the Civil Code [FN56] protecting the right to respect for
private life; and the 1992 amendments to the Labor Code for the protection of
individual liberties in the enterprise. [FN57] The 1992 amendments were a
reaffirmation and an expansion to the workplace of the principles of the 1978
law and the 1981 Convention 108 of the Council of Europe. [FN58]
The protections for French workers are both procedural and substantive. Section
L432-2-1 of the French Labor Code requires that employers inform and consult
with the workers' council or other elected representatives of the workers in
advance of any decision to put institute or modify methods of monitoring
employees' activities, such as new technologies having important consequences
for conditions of employment and data processing techniques related to
personnel management. [FN59]
The Labor Code has also applied the procedural requirements of the Law on Data
Processing and Liberty to the workplace by requiring that an employee be
informed in advance of any automated treatment of information identifying that
employee and any automated techniques of professional *388
evaluation. [FN60] Where such information is collected,
the employee must be advised whether the requested data is mandatory or
optional; the employer must provide access to the data and the right to correct
errant data. The new section L 121-8 of the Labor Code specifies that no
information concerning an employee or candidate for employment may be collected
unless the employee is informed in advance of the means of collecting the data.
[FN61] The 1992 Law Aubry charged the
Ministry of Labor's inspection division with seeing that the Law on Data
Processing and Liberty was observed in the workplace by allowing the inspectors
to investigate and bring a complaint to the CNIL or directly to local
prosecutors. [FN62]
The Law on Data Processing and Liberty of 1978 created the National Commission
on Data Processing and Liberty (CNIL) as the guardian of fundamental rights
affected by data processing techniques. [FN63] The CNIL is charged with monitoring
all automated treatments of data that identifies individuals. [FN64] It studies, makes rules concerning,
and approves applications for virtually all such treatments, public and
private. [FN65] The rules of the CNIL require, in
advance of the installation or modification of an automated treatment of data
that identifies individuals, the submission of a declaration describing the
data and its treatment, the business purposes of the treatment, the procedures
for informing interested parties, identification of those to whom the data will
be transmitted, and the safeguards for protecting confidentiality. [FN66] The CNIL also receives complaints,
conducts field investigations and makes individual decisions concerning systems
of data collection and treatment. [FN67] Interestingly enough, despite these
very broad powers, the operations of the CNIL are extremely independent of both
the government and the business sector due to an unusual political deadlock and
compromise at the time of its creation. It was created as the first French
independent administrative agency. [FN68] The power of appointment of most *389
CNIL members was not given to the government in power, but to the legislature
and several independent courts and councils. [FN69]
The substantive protections for workers from electronic monitoring and
surveillance stem from the 1992 Law Aubry and to new life given to Art. 9 of
the Civil Code [FN70] by the courts. The new Art. 120-2 of
the Labor Code, added by the Law Aubry, states simply: "No one may place
restrictions on the rights of persons and individual or collective liberties
which are not justified by the nature of the task to be accomplished and
proportional to the objective sought." [FN71] That sentence, borrowed from a
provision of the Labor Code confined to work rules, [FN72] introduces the notion that any
restriction on individual or collective rights must be directly related to and
proportional to the importance of a legitimate business interest. This notion
is both broad and vague, leaving substantial room for judicial interpretation.
Similarly, Article 9 of the Civil Code gives much leeway for judicial action.
That article states: "Everyone has a right to respect for his private
life. The judges may, without prejudice to compensation for injuries received,
prescribe all measures, such as injunctions, seizures or other means,
appropriate for preventing or halting an injury to the intimacy of private
life; these measures, in an emergency, may be ordered summarily." [FN73]
In the jurisprudential space created by these laws, the courts have been
active. The French courts have several times rejected the use of tapes from
hidden video cameras to prove the grounds for dismissal of an employee. [FN74] One outstanding case found the
French Supreme Court (Cour de Cassation) rejecting the dismissal of an employee
where the evidence against the employee was the tape from a hidden video
surveillance camera that showed the employee stealing from the register. The
Court held that an employee *390 may not be videotaped unless she
or he is notified in advance of the taping and there are exceptional circumstances
that justify the videotaping, e.g. repeated thefts. [FN75] In another case, the Court of
Appeals of Aix- en-Provence rejected videotape evidence of the negligence of a
dismissed employee on the grounds that, given the easy availability of
technologies to edit or forge images, the tape was unreliable as evidence. [FN76]
In several cases, the courts have penalized employers for collecting or
processing electronic data concerning employees without informing the employees
in advance, consulting with the works council or submitting a declaration to
the CNIL. [FN77] The Paris Criminal Court fined the
CEO and a data processing corporation for collecting and using performance
statistics, attributable to identified employees, from the data entry stations
of the operators. [FN78] These statistics on numbers of
keystrokes, numbers of corrections and times elapsed were posted daily in the
work area and operators were evaluated and even dismissed based on the
statistics. [FN79] When a dismissed operator brought
this to the attention of a Ministry of Labor Inspector, the Inspector investigated
and obtained reinstatement for the employee. [FN80] In addition the Inspector
ascertained that the collection of these statistics was not the subject of
notification or consultation with the employees or a submission to the CNIL, as
the originally stated purpose was to collect aggregate--not individually
identifiable--data concerning the operators. [FN81] The case was brought to the local
prosecutor resulting in a conviction for failure to declare to the CNIL a
nominative treatment of electronically processed data and a fine of Fr 6000. [FN82] While the law prescribes penalties
of up to 3 years in prison and fines of up to Fr 200,000, the court's leniency
was based on the fact that the collection of individually identifiable
statistics stopped immediately upon the intervention of the Labor Inspector. [FN83] Are French law and jurisprudence
inspired by the idea of human *391 dignity as suggested above?
There are several important indications that the answer to this question is
yes. The 1975 Report of the Commission on Data Processing and Liberty proposing
the 1978 legislation discussed the threat to human rights, identity and dignity
posed by means of collecting and treating personal data that are immeasurably
more powerful and rapid than those available in the past. [FN84] The first conclusion of the report
was that an agency be created to serve as the "social conscience" of
the nation with regard to the electronic collection and processing of personal
data. [FN85] Article 1 of the 1978 law states
that data processing "shall infringe neither human identity nor the rights
of man, nor private life, nor individual and public liberties." [FN86] While the language used in the
legislation, and later European Community documents heavily influenced by the
French example, stressed rights and liberties, these rights and liberties were
seen as not only legal and individual, but moral and collective. [FN87] The reference to "human
identity" highlights an important element of human dignity. An influential
study of the 1978 law noted that "the reference to human identity is a
reflection of the concern over the homogenizing effect of data processing:
over-generalization may harmfully limit human individuality. A case in point
would be the characterization of an individual as a result of a few items of
information." [FN88]
In the 1990s, concern that human dignity and identity were under attack
received even greater emphasis in the annual reports of the CNIL. The increased
use of new technologies for surveillance, monitoring and information collection
and the demands of European integration were seen as a threat to the legal
protections accorded French citizens through the work of the CNIL. [FN89] The foreword to the 1992 report of
the CNIL's activities noted that the use of surveillance technologies touches
not only a person's liberties, but also her or his "identity itself."
[FN90] It went on to note that if
protections for citizens are reduced in the future, "mankind will be
diminished." [FN91] The 1993 annual report warned of
"the web which, with the advancement of technology, is woven little by
little around each individual" *392 and which is changing
"the conception one has of the individual and the society." [FN92] Furthermore, the same section of the
1993 annual report noted:
But a new difficulty looms on the Atlantic horizon. How will the Americans, who
have only embryonic protections [i.e., for individuals regarding the collection
and dissemination of individually identifiable data], react commercially if
Europe places conditions on the transborder flow of data that they cannot
satisfy? [FN93]
Even more clearly, the 1992 report to Minister of Labor Aubry, Public Liberties
and Employment, authored by Gerard Lyon-Caen, advocated a greater emphasis on
human dignity. [FN94] The resulting Aubry Law seemed to
accept this analysis. [FN95] Lyon-Caen argued that the new
technologies of data collection, treatment and surveillance had created a
Foucauldian workplace where the employee was an object of measure rather than a
person. [FN96] Control was exercised internally to
make the worker "transparent", thus robbing her of human dignity and
identity. [FN97] According to Lyon-Caen, this was far
removed from the traditional and legal notions of subordination implied by the
employment contract. [FN98] Contributing to my argument
regarding Italy as well as France, Lyon-Caen suggested that French labor law
should more clearly affirm a right to personal dignity as did the Italian and
Spanish worker statutes. [FN99] This foundation was most important
because it recognized the importance of and provided the protection for social
relations in the workplace. This included real social relations with
supervisors who were present and accessible as human beings. [FN100]
With the implementation of the European Community Directive on the Protection
of Individuals with Regard to the Processing of Personal Data and on the Free
Movement of Such Data, [FN101] Prime Minister Jospin commissioned *393
and received a report from the Conseil d'Etat (France's Supreme Court for
administrative law) which noted the emphasis of the Directive and French law on
the protection of human dignity. [FN102] The report warned of the dangers to
human dignity of making decisions about individuals based only on quantified
and computerized data about that individual and of the collection and transfer
of individually identifiable data without the knowledge or consent of the
identified person. [FN103] Finally, the report contrasted the French
and European data regulations designed to protect human dignity with the
distinctly more limited American protections for privacy. [FN104] Both the report and the Prime
Minister have recommended the strengthening of the CNIL's powers to regulate
the collection, processing and use of personalized data. [FN105]
V. ITALIAN LAW AND JURISPRUDENCE
The protection of workers from electronic monitoring is done
differently in Italy. In France, as is typical in that highly bureaucratic,
low-uniondensity country, the CNIL and the Ministry of Labor are charged with
protecting the human dignity of workers from certain forms of data collection
and electronic monitoring. However, the courts have provided some key
interpretations of the law to bolster the authority of the agencies to protect
workers against affronts to human dignity. [FN106] The protections are written into
specific laws and regulations and include the criminal law. In Italy, with a
strong labor movement, creative jurisprudence has placed the protection of
workers' dignity from electronic monitoring more squarely in the hands of the
unions. [FN107]
Title I of the Italian Workers Statute of 1970, the preamble, is entitled
"Of the Liberty and Dignity of the Worker." [FN108] Here the emphasis is on fundamental
individual rights and liberties that are considered necessary for human dignity
and act as limits on managerial prerogatives. These individual rights and
liberties are securely established, however, in that they can *394
effectively counter the power of an employer on a foundation of collective
rights and the protection of trade union activities. The protection of workers
against electronic surveillance and monitoring clearly shows this dual
structure. [FN109]
The language of Article 4 of the Workers Statute prohibits remote surveillance
of workers by video camera or other devices. [FN110] Furthermore, the law does not allow
an individual worker to consent to such surveillance. For reasons of business
necessity, remote surveillance may be agreed to by union delegations or works
councils. [FN111] The individual worker may still
have legal recourse to challenge the surveillance, even where the union has
agreed, if the means used or the intensity is regarded by the Ministry of Labor
or the courts as an infringement on human dignity. [FN112] Article 4 clearly targets
monitoring devices not directly related to the employee's work, such as video
and audio recordings. [FN113] As a result, the installation of
telephone accounting systems, computerized cafeteria inventories, safety
monitoring devices and the electronic recording of sensitive banking and
finance transactions have all required trade union agreement. [FN114] Under the 1996 Italian law
implementing the European Directive on personal data protection, the informed
consent of each individual employee has been required before personally
identifiable data may be transmitted by any organization that collects it. [FN115] For example, the commission charged
with administering this law [FN116] has interpreted it to mean that an
employer contracting with an outside accountant for payroll services needed the
consent of each employee whose payroll data would be transmitted. [FN117]
The debate of the last fifteen years has been over the application of the
Article to electronic monitoring that is made possible by the very equipment
that the employee uses for her or his work, particularly computers or *395
computer-controlled machines. [FN118] While Article 4 was originally
drafted with the video surveillance of workers in a factory in mind, the
language of the article included "other devices." [FN119] Here the courts have followed the
rationale of Article 4 to preserve the human dignity of the worker by
preserving the human element in supervision and a reasonable amount of autonomy
in the performance of the tasks required by the employment relationship. [FN120] Generally the courts have
prohibited the use of software installed for the purpose of minute and
impersonal control of a worker's performance without prohibiting at the outset
the introduction of equipment incidentally capable of exercising such control. [FN121] For example, the courts since 1984 have
consistently rejected the use of computer software that was designed to record
elapsed time, mistakes, pauses and similar data on individual workers. [FN122]
This debate began in earnest with a criminal case brought against several IBM
Italy executives for violation of Article 4 of the Workers Statute in the Milan
Criminal Court in 1982. [FN123] The case, decided by the lower
criminal court on December 5, 1984, gave rise to great controversy, appeals and
an eventual settlement. [FN124] In a lengthy opinion, the court
struggled with Article 4's prohibition against remote monitoring of employees
and with the penal sanctions imposed for violation of that Article by Article
38 of the same statute. [FN125] The case concerned IBM's
introduction of a computerized workflow analysis system called "Service
Level Reporter" (SLR) designed for the collection of aggregate data on
data processing operations. [FN126] In collecting and aggregating data
such as numbers of completed and aborted runs or mean elapsed times on batch
jobs and runs, the system also collected and was capable of reporting data
individually for each terminal used to submit a job. [FN127] The identification of the terminal,
of course, generally allowed the identification of the individual terminal
operator. The evidence presented to the court by the IBM executives was that
the evaluation of *396 individual employee's work was not the
purpose for which the system was installed nor was a report of such individual
information ever requested or used for employee evaluation. [FN128] The case then turned on whether a
system which could potentially be used for the remote monitoring of individual
workers, but was not intended to be so used and was in fact not so used, gave
rise to the penal sanctions of Article 38. [FN129]
The court relied heavily on the distinction between the language of paragraph
one and paragraph two of Article 4. Paragraph one states: "It shall be
unlawful to use videocameras and other equipment for the remote monitoring of
workers' activity." [FN130] Paragraph two refers to
"[c]ontrol equipment and appliances required for organisational [sic] and
productive reasons or for work safety but which could be used for the remote
monitoring of workers...." [FN131] This latter category of equipment
"may be installed only after obtaining the agreement of the trade union
delegations or, failing this, that of the works council." [FN132] The court took for granted that
this provision included the installation of software as well as hardware. [FN133]
The court reasoned that the legislative intention behind paragraph one was the
outright prohibition, subject to criminal sanction, of the installation or use
of remote-surveillance equipment not directly connected to the firm's
productive purposes or the employees' work. [FN134] This would include such equipment
as video surveillance devices, audio listening devices and magnetic badges for
tracking the whereabouts of employees. [FN135] This type of equipment, the court
found, directly infringed upon the dignity and autonomy of the worker by
subjecting her to constant, impersonal monitoring of her actions. [FN136]
Paragraph two, on the other hand, dealt with the installation of equipment that
at the outset was directly related to the firm's productive purposes and to the
work of the employees and was only potentially capable of the remote monitoring
of the employees' actions on an individually *397 identifiable
basis. [FN137] That equipment was subject to
certain conditions limiting its use that could allow its installation. Here the
court tried to balance the employer's interest in the use of equipment that was
essential to the work being done and that monitored work processes for the
purpose of improving their efficiency with the employees' interest in the
protection of their human dignity and autonomy. [FN138]
For several reasons the court found the proof of the IBM officials' criminal
culpability insufficient. In the first instance, at the time of the
installation of the computer terminals, the potential of remote monitoring of
individual employees was too speculative and outside of the use intended by the
responsible IBM officials to fall under the prohibitions of Article 4. [FN139] The installation of the SLR system
software, however, did fall within those prohibitions. [FN140] However, the imposition of criminal
liability required knowledge of the system's capabilities for individual
employee monitoring and intent to make use of them, the best evidence of the
two elements being the actual use for individual monitoring. [FN141] Second, even if the IBM executives
had some knowledge of the system's potential, a partial agreement on some
aspects of computerized data collection on, and monitoring of, individual
employees had been reached in early 1982 with the local trade union delegation.
[FN142] The court reasoned that although
this agreement might ultimately be found to be insufficient to cover, or
breached by, the installation of the SLR system, it did throw further doubt on
the criminal knowledge and intent necessary for imposing penal sanctions on the
IBM executives. [FN143]
In the end the court acquitted the officials on the criminal charges while
expressly noting the possibility of a successful civil action. [FN144] In its opinion the court recognized
that the computerized monitoring of an employee's activities for the purpose of
evaluating an individual employee's work was an assault on that employee's
human dignity even where the monitoring was done by a machine necessary for the
employee's work. [FN145] Human dignity required that an
employee not be subjected to the impersonal, mechanical, *398 and
constant surveillance of a machine and that an employee not be evaluated
impersonally by electronically processed quantitative data alone. [FN146] The autonomy necessary for
protecting human dignity required that an employee participate in collective
decisions about the monitoring and evaluation of his or her work. [FN147]
Ultimately the case was settled based on an extension of the 1982 agreement whereby
the company agreed not to collect data attributable to individual operators
except where that data was critical to the operation of the business. [FN148] The designation of individually
identifiable data critical to business operations would be the subject of a
joint examination by the employer and the union on a case-by-case basis. [FN149]
As later court cases and commentators have reaffirmed, the basis for Italian
law on the electronic monitoring of workers is that supervision must have a
human dimension and must not be so powerful, continuous, anonymous, invisible
or inflexible as to eliminate a considerable measure of autonomy or reserve in
the employee's performance of a task. [FN150] In addition, supervision must be
directly related to the tasks required of the employee and not disproportional
in intensity to the nature and importance of those tasks. [FN151] Furthermore, the main assurance
that these limits are observed by the employer is the intervention of trade
union representatives in the decision making concerning techniques of
supervision. [FN152] Italian jurisprudence has
established these as central elements of the protection of human dignity in the
workplace. [FN153]
VI. AMERICAN LAW AND JURISPRUDENCE
A. Federal Law
In contrast, the limitations in the United States on an
employer's use of electronic surveillance and monitoring techniques, based on a
narrower *399 concept of protecting a worker's privacy rather
than human dignity, are much less extensive. [FN154] There are several putative sources
of the legal protection of workers from electronic surveillance and monitoring
in the workplace; on close investigation, however, these sources provide little
protection. [FN155] The "usual suspects" for
generating privacy protection in the workplace are the Fourth Amendment's
protection from unreasonable searches and seizures, [FN156] the federal Electronic
Communications Privacy Act, [FN157] state constitutions and statutes
protecting privacy or barring specific means of surveillance, [FN158] and common law remedies for
invasion of privacy or abusive discharge. [FN159] Of course, a collective bargaining
agreement could explicitly limit the monitoring of employees, but both
practical and legal difficulties exist that make this rare. To a certain extent
both American workers and their employers begin with a legal concept of privacy
that is much narrower than the Europeans' (at least the workers') notion of
human dignity. The territory-and property-oriented concept of privacy that is
pervasive in American law cedes to the employer, the owner of the work premises
and equipment, and the imposer of the terms of employment, a wide latitude in
the content and the means of gathering information about the employees' activities
in the workplace and beyond.
Let us consider the "usual suspects" mentioned above in order. The
Fourth Amendment to the U.S. Constitution guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." [FN160] The Supreme Court has acknowledged
that this right may apply to the electronic gathering of *400
information and to employment situations. [FN161] However, this right is only
protected against government action: the Fourth Amendment establishes no right
against unreasonable searches and seizures by private employers. [FN162] As a result government employees
may appear to have a somewhat stronger claim for protection against electronic
monitoring and surveillance than private sector employees. This difference is
illusory. To a large extent, private employment law analogies have entered into
the key legal determination of whether the government employee has a
"reasonable expectation of privacy" regarding the workplace or
activity in question. [FN163] The government employer's control
of the premises and the equipment, the implied consent of the worker who is
generally informed that monitoring might take place and the balancing of the
magnitude of the intrusion into the employee's control over personal intimacy
or information against the business necessities and efficiency of the public
employer all combine to greatly limit a government employee's "reasonable
expectation of privacy." [FN164]
In O'Connor v. Ortega, a case regarding the physical search of an employee's
desk, Justice O'Connor's plurality opinion held that an employee's expectation
of privacy is limited by "actual office practices" and
"legitimate regulation;" [FN165] that is to say, if monitoring or surveillance
were existing practices known to the employee or the employer had a stated
policy of random or regular surveillance, the employee's expectation of privacy
would be defeated. This clearly leaves the determination of the employee's
reasonable expectation of privacy solely in the hands of the government
employer. The plurality opinion went on to say that a non-investigatory
work-related search is presumed to be reasonable. [FN166]
Furthermore, the work-related reason for the surveillance or search need not be
an important reason and it may be one of many reasons, even though the others,
standing alone, would render the search or surveillance improper. [FN167] It is unlikely then that any
apparently work-related reason will be rejected by a court as the justification
for surveillance and monitoring. In general, courts have not required that the
government employer prove the *401 actual existence or validity
of an alleged work-related purpose for a search or surveillance. [FN168] The burden is on the employee to
show that an allegedly work-related search or type of monitoring was clearly
unreasonable under existing law. [FN169] The Fourth Amendment, enmeshed in
the privacy context, clearly does not address questions of the intensity or
impersonality of the surveillance. Tied to the "state action"
requirement, the Fourth Amendment and its extension through the Fourteenth
Amendment do not affect private employment. [FN170]
The Electronic Communications Privacy Act of 1986, [FN171] ("ECPA") which updated
the Wiretap Act to cover private communications systems and new forms of
electronic communication that were not telephone, telegraph or radio
transmissions, has generally proven ineffective in protecting employees in the
workplace from their employers' monitoring. [FN172] The ECPA would seem to have
particular relevance to the monitoring of phone calls and email at work in that
it prohibits the interception of data transmitted by wire, radio or other
electronic means. [FN173] There are, however, three major
exceptions to the prohibition which give employers virtually a free hand to
engage in such monitoring.
Provisions of the ECPA establish a "provider" exception. [FN174] These provisions allow the provider
of a private communication system or its employees or agents to monitor the use
of its equipment. [FN175] When the employer provides the
equipment and/or the network, or can be seen as the agent of the provider,
monitoring telephone calls and electronic *402 communications of
its employees, at least where the employer deems it necessary to protect the
business or insure the proper use of the communication equipment, falls into
this exception. [FN176]
There is also a business extension exception which removes from the definition
of "device" any telephone or component "furnished to the subscriber
or user by a provider of [the] ... communication service in the ordinary course
of its business and being used by the subscriber or user in the ordinary course
of its business ...." [FN177] If the monitoring of calls, voice
mail or email is for the purpose of supervision, evaluation or any other
asserted business interest of the employer, the monitoring is permissible under
this exception. [FN178] This generally includes as well the
interception of nonbusiness-related employee communications at least to the
extent necessary to determine that they are such or to determine that the
equipment is being used in an unauthorized manner. [FN179] If a personal call mentions
workplace activities in any way, it may again fall into the ordinary course of
business exception. [FN180]
Furthermore, the ECPA excludes any recording or interception of communications
where one of the parties to the communication agrees to the recording or
interception. [FN181] The "agreement" to have
one's communications monitored may be general and implicit. [FN182] Here again the employer sets the
standards. [FN183] If there is an established policy
of monitoring or the employee is at least aware that monitoring may occur, then
initial and continued employment can be seen as consent to the monitoring. [FN184] Of course, in an at-will employment
situation, the employee may be dismissed for refusing to agree to monitoring. [FN185] If a party to the communication
other than the *403 employee under surveillance agrees to the
monitoring, there need be no knowledge or consent of the employee. [FN186]
If the employee were to store electronic communications on her office PC hard
disk or network storage provided by the employer, the employer would not be in
violation of the ECPA if she searched these storage sites and read the
messages. [FN187] The only electronic storage the
ECPA protects is defined as: "(A) any temporary, intermediate storage of a
wire or electronic communication incidental to the electronic transmission
thereof; and (B) any storage of such communication by an electronic communication
service for purposes of backup protection of such communication." [FN188] Overall court interpretations and
commentators on the ECPA have not regarded it as an important protection for
workers in the workplace. [FN189] Indeed, the legislative history of
the ECPA reflects concern for company privacy rather than that of individual employees.
[FN190]
In an interesting counterpoint that highlights the European-U.S. difference,
Northern Telecom settled a lawsuit with its union, the Communications Workers
of America, over the secret electronic monitoring of employee communications
over a thirteen year period. Northern Telecom renounced its monitoring policy,
noting that in Japan and Europe such monitoring was already banned with no
detrimental effect on business performance. [FN191]
*404 B. State Law
While several states have constitutional provisions guaranteeing
a right to privacy, only one state, California, has held that the right to
privacy applies to private as well as governmental employers. [FN192] The employer must show a
"compelling interest" to justify an intrusion upon the employees
right to privacy. [FN193] However, the California Superior
Court, in Flanagan v. Epson America, refused to apply the right to privacy to a
private employee's e- mail. [FN194] The court suggested that the
extension of constitutional privacy rights was for the legislature, not the
judiciary. [FN195]
Forty-eight states and the District of Columbia have statutes similar to the
federal ECPA, prohibiting the interception of electronic communications. [FN196] Many of these states echo the one
party consent, "business extension" and "provider"
exemptions of the ECPA. Thirteen states require that prior consent must be
given by all parties to the communication. [FN197] Twenty-two states and Washington,
D.C. have no "business extension" exception or restrict the
"provider" exception to communication common carriers. [FN198] In thirty-one states and D.C.,
therefore, the electronic communication privacy statutes seem to provide
protection for employees superior to the ECPA as long as the interception
occurs within *405 their jurisdiction. [FN199] This appearance is deceptive. The
Illinois courts, for example, have interpreted the apparent all-party consent
requirement to mean at least one party. [FN200] As all of the states are also
at-will employment states, the implied consent of all employee participants in
a communication is assumed in most cases. Furthermore, while these statutes
apply to the monitoring of telephone and wire communications, they do not reach
other forms of electronic monitoring and surveillance. State bills to
strengthen the protections of workers against electronic monitoring in the
workplace have generally failed because of sustained and effective corporate
lobbying. [FN201]
The Restatement (Second) of Torts, the definitive treatment of state common law
regarding privacy recognizes "the unreasonable intrusion into a person's
seclusion" [FN202] as the sole relevant basis for
establishing privacy rights in the workplace. These words themselves seem
immediately inappropriate for the workplace where a person is on the premises
owned by another and in the presence of co-workers and the employer. The
intrusion claim implies an unreasonable and objectionable prying into something
one has a right to keep private. Outside of the employment setting there are
two independent considerations: (1) Did the individual intruded upon have a
legitimate expectation of privacy?; (2) Did the legally protected interests of
the intruder outweigh the legitimate expectation of privacy? When the claim is
moved into the employment arena, courts have conflated the two considerations,
allowing the employer's interests to dominate. [FN203] The employer may unilaterally
change the employee's expectation of privacy by instituting a policy of
intrusion or by simply intruding on one or more occasions. As the employer has
the right to manage the employee for the employer's business purposes, there is
little that the employee has a right to keep private if it impinges in any way
on the workplace. [FN204] The employee consents to any
intrusions by remaining at work after becoming aware of the intrusion or the
possibility of such an intrusion. [FN205] Finally, an at-will *406
employee who objects to the intrusions or the policies allowing them may be
immediately dismissed. [FN206]
Smyth v. Pillsbury [FN207] clearly takes up and severely
restricts any common law right to privacy of e-mail communications for an
at-will employee. Smyth claimed that he was wrongfully discharged from his
position as regional operations manager when Pillsbury discharged him for
sending sarcastic and critical e-mail communications to his supervisor. [FN208] Smyth had received e-mail
communications sent from his supervisor's computer at Pillsbury to Smyth's home
computer. The two employees then exchanged e-mail communications concerning
recent developments involving Pillsbury's sales management staff. [FN209] The supervisor deemed Smyth's
comments inappropriate. [FN210] The Smyth court held that an
at-will employee had no right of privacy in the contents of his or her e-mail
when it was sent over the employer's e-mail system. [FN211] The court concluded that, in a
Pennsylvania common law cause of action for wrongful discharge, an at-will
employee does not have a reasonable expectation of privacy in the contents of
his e-mail communications sent through his employer's e-mail system. [FN212] The court held further that an
employer's interest in preventing inappropriate comments or illegal activity
from being transmitted over its e-mail system far outweighs any privacy
interest an employee may have in his e-mail communications. [FN213] While the court seemed to take a
strained and unsophisticated view of the issues at stake, it provided the most
recent statement on the extreme difficulty of protecting workers by means of
any U.S. common law of privacy. [FN214]
With regard to computer-based surveillance, in Barksdale v. IBM Corp., the
court dismissed short-term employees' claims of violation of the right to
privacy stating that "[t]he Defendant's observation and recording of the
number of errors the Plaintiffs made in tasks they were instructed to perform
can hardly be considered an intrusion upon the Plaintiff's 'solitude or *407
seclusion ... or their private affairs and concerns."' [FN215] While this was an unusual case
because of the short-term nature of the employment and the job of testing the
visibility of computer monitors, it still made clear that the employer defined
the reasonableness of the employees' expectations of privacy by the nature of
the tasks he assigned and the practices he followed. [FN216]
VII. CONCLUSION: OTHER NOTIONS OF PRIVACY THAT BORDER ON HUMAN DIGNITY
The foregoing analysis of the deficiencies of the U.S. legal
concept of privacy in the workplace as a protection against electronic
surveillance does not preclude the fact that there have been attempts in the
U.S. legal culture to develop a more comprehensive notion of privacy that would
have some of the impact of notions of human dignity and autonomy. The
Prosser/Restatement of Torts view of privacy that dominates U.S. law has not
gone unchallenged in the American legal community. Edward Bloustein argued
compellingly in direct response to Prosser's seminal 1960 article that Prosser
and American courts have misconstrued the very founders of the common law right
to privacy in the U.S., Samuel Warren and Louis Brandeis. [FN217] Bloustein noted that their 1890
Harvard Law Review article was very clear on the point that the right to
privacy derived, not from notions of private property (as courts have
declared), "but that of inviolate personality." [FN218] Bloustein concluded this meant,
"the individual's independence, dignity, and integrity; it defines man's
essence as a unique and self-determining being." [FN219] And as had Warren and Brandeis,
Bloustein in the end warned that
The personnel practices of government and large-scale corporate enterprise
increasingly involve novel forms of investigation of personal lives.... And the
information so gathered is very often stored, correlated and retrieved by
electronic machine techniques. *408 The combined force of the new
techniques for uncovering personal intimacies and the new techniques of
electronic use of this personal data threatens to uncover inmost thoughts and
feelings. [FN220]
In another frequently quoted article, Ruth Gavison stated:
Our interest in privacy ... is related to our concern over our accessibility to
others: the extent to which we are known to others, the extent to which others
have physical access to us, and the extent to which we are the subject of
others' attention. This concept of privacy as a concern for limited
accessibility enables us to identify when losses of privacy occur. Furthermore,
the reasons for which we claim privacy in different situations are similar.
They are related to the functions privacy has in our lives: the promotion of
liberty, autonomy, selfhood, and human relations, and furthering the existence
of a free society. The coherence of privacy as a concept and the similarity of
the reasons for regarding losses of privacy as undesirable support the notion
that the legal system should make an explicit commitment to privacy as a value
that should be considered in reaching legal results. [FN221]
The explicit recognition of the broad concept of privacy Gavison recommends
would give an employee's privacy claims regarding employer collected data much
greater weight in any balancing against the employer's interest in the
efficiency of his business operations. Courts very rarely seem to accept this
expanded notion of privacy. In a very few cases dealing with the
"telephone extension" and "ordinary course of business"
exceptions to the ECPA have held that excessive monitoring by employers,
particularly if covert, may lead to ECPA violations. [FN222]
But as James Rule and his colleagues noted in The Politics of Privacy, this
balancing in itself may be the problem. Privacy and data protection laws frame
the issues too narrowly. While public policies that seek to "balance"
privacy rights with organizational demands for information may produce a fairer
and more efficient management of personal data, they cannot control the growing
inherent demand and technological capacity of bureaucratic *409
institutions to gather, store and access detailed personal information. [FN223] Against this, policies of outright
prohibition of specific technologies and of gathering certain kinds of data may
be the only answer, however temporary. [FN224]
Several legislative bodies have unsuccessfully attempted to control electronic
monitoring in the workplace based upon a much broader notion of privacy that
encompassed human dignity. The foremost was the Privacy for Consumers and
Workers Act of 1993 ("PWCA"). [FN225] Supporters of the bill argued that
the technocrats who designed workplace surveillance systems had forgotten the
humanity of employees. [FN226] If the technology slices people up
into tiny pieces and views them under a microscope, their spirit is destroyed.
They argued that the bill would take steps toward treating employees with
respect and dignity. [FN227] The bill defined electronic
monitoring broadly:
[T]he collection, storage, analysis, or reporting of information concerning an
individual's activities by means of a computer, electronic observation and
supervision, telephone service observation, telephone call accounting, or other
form of visual, auditory, or computer-based technology which is conducted by
any method other than direct observation by another person, including the
following methods: Transfer of signs, signals, writing, images, sounds, data,
or intelligence of any nature which are transmitted in whole or in part by a
wire, radio, electromagnetic, photoelectronic, or photo-optical system. [FN228]
Section 4 of the bill required an employer to provide a prior written notice to
each employee to be monitored. [FN229] The notice had to describe the
forms of electronic monitoring to be used, the personal data to be collected, and
the hours and days that monitoring would occur. [FN230] The employer also *410
was required to explain how the data obtained would be used and provide a
description of the monitoring. [FN231] Furthermore, the same section
required the employer to inform prospective employees in writing of existing
forms of monitoring. [FN232]
Section 5 of the bill permitted unlimited random monitoring of employees only
in the first sixty days of employment. [FN233] For employees with less than five
years and greater than sixty days of employment, random monitoring could not
exceed two hours per week. [FN234] Monitoring of workers with at least
five years employment in the enterprise was prohibited, except in cases of
suspicion of criminal activity or of gross misconduct damaging to the business.
[FN235]
Section 8 of the bill prohibited the employer from taking any action against an
employee based on the personal data obtained by electronic monitoring unless
the employer was in compliance with all requirements of the PCWA. [FN236] Nor could an employer use
quantitative data obtained by monitoring that records the amount of work
performed by an employee within a specific time as the sole basis for
individual employee performance evaluation or to set production quotas or work
performance expectations. [FN237] If an employer had an immediate
need for specific data while the employee concerned was unavailable, the
employer could access the data if it was alphanumeric and was not an employee
communication, so long as the data was not used for employee discipline or
performance evaluation, and the employer notified the concerned employee of his
access to the information. [FN238]
Additional provisions prohibited electronic monitoring in bathrooms, locker
rooms, or dressing rooms unless the employer has a reasonable suspicion that an
employee was engaged in unlawful activity [FN239] and prohibited the intentional use
or dissemination of personal data obtained by electronic monitoring of an
employee when the employee was exercising First Amendment rights. [FN240]
*411 Similar unsuccessful legislation proposed in Massachusetts
and effectively resisted by business interests specified the rights it sought
to advance in this manner:
1) Right to Know: Employees have the right to know if, when, and how they are
being monitored along with how the information gathered will be used.
2) Right to Privacy: Employees should be protected from monitoring that is
irrelevant to job performance.
3) Right to Due Process: Employees have access rights to information collected
through monitoring, and must be given access to the information in a timely
manner if the information is to be used against them.
4) Right to Human Dignity: Employees have the right to be evaluated by means
other than electronic monitoring, because a human side to every job exists
which cannot be evaluated electronically. [FN241]
In West Virginia a statute prohibiting secret telephone monitoring was passed
in 1981. [FN242] AT&T, which had engaged
extensively in such monitoring prior to the passage of the statute, was forced
to discontinue its secret monitoring of telephone operators responses to
customers. [FN243] Even though during the two years
following the passage of the law, the West Virginia AT&T division was rated
outstanding in the Bell System on customer service, the company successfully
lobbied for the repeal of the legislation in 1983. [FN244] AT&T's lobbying efforts
included the threat not to locate a planned major manufacturing facility in
West Virginia. [FN245]
The failure of these pieces of legislation makes clear that the incorporation in
U.S. law of a broader notion of privacy which includes human dignity is
strongly resisted. The West Virginia legislation, the PCWA and the
Massachusetts bill were implacably opposed by business interests *412
and that opposition led to their repeal or defeat. [FN246] Although a change in the
composition of Congress might lead to the revival of the PCWA or a similar
bill, its passage would still be questionable. Likewise, as the foregoing
analysis has attempted to show, American jurisprudence has not broadened the
notion of privacy for the protection of workers' autonomy from overly intense
or highly impersonal forms of supervision. This expanded notion of privacy does
not seem to be a logical extension of the Prosser definition of the tort of
invasion of privacy. It may, therefore, be strategically wise for those who
advocate an extension of worker autonomy and restrictions on subordination in
the workplace to attempt to move the debate to a notion of human dignity that
must be protected wherever a person is and whoever defines the tasks that must
be performed. In addition, human dignity as a value is much more closely
related to collective action and to the sharing of decision-making power and
thus more in tune with the purposes and actions of labor unions to protect
workers. Privacy, on the other hand, implies the protection of solely
individual interests against all others. An emphasis on human dignity may lead
to policies that reflect the higher standards of worker protection and
participation existing in French and Italian law.
[FNa1]. Professor of Political Science and
Associate of the Charles T. Schmidt, Jr. Labor Research Center, University of
Rhode Island; attorney and member of Rhode Island, Massachusetts and Illinois
bars. B.A. in Government, Carleton College, 1966; J.D. University of Illinois
College of Law, 1969; Ph.D. in Political Science, University of Massachusetts,
1976. A version of this paper was delivered at the 11th World Congress of the
International Industrial Relations Association, Bologna, Italy, September 25,
1998.
[FN1]. See generally Victoria Bellotti,
Design for Privacy in Multimedia Computing and Communications Environments, in
TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE 63, 64-66 (Philip E. Agre & Marc
Rotenberg eds., 1997); Rebecca Quick, Not-So-Private Lives, WALL ST. J., Nov.
16, 1998, at R27.
[FN2]. See U.S. OFFICE OF TECHNOLOGY
ASSESSMENT, THE ELECTRONIC SUPERVISOR: NEW TECHNOLOGY, NEW TENSIONS 102-4
(1987).
[FN3]. See Charles Piller, Bosses with
X-Ray Eyes: Special Report on Electronic Privacy, MACWORLD, July 1993, at
120-22.
[FN4]. See AMERICAN CIVIL LIBERTIES UNION
(ACLU), SURVEILLANCE, INCORPORATED: AMERICAN WORKERS FORFEIT PRIVACY FOR A
PAYCHECK 2 (special report 1996).
[FN5]. See AMERICAN MANAGEMENT ASSOCIATION,
ELECTRONIC MONITORING AND SURVEILLANCE (1997) (visited Mar. 23, 2000)
<http:// www.amanet.org/survey/elec97.htm>.
[FN6]. See discussion infra Part IV.
[FN7]. See COMMISSION NATIONALE DE
L'INFORMATIQUE ET DES LIBERTES (CNIL), 14E RAPPORT D'ACTIVITE 1993 16 (1994).
[FN8]. See Les Entreprises Surveillent de
Pres leurs Salaries, LE PARISIEN, April 24, 1998 at A5.
[FN9]. See La CNIL, A quoi sert la CNIL?
Recenser les Fichiers, (1999) (visited Mar. 23, 2000)
<http://www.cnil.fr/cnil/cnil21.htm>.
[FN10]. See CNIL, 19E RAPPORT D'ACTIVITE
1998 17 (1999).
[FN11]. See Colin Bennett, Convergence
Revisited: Toward a Global Policy for the Protection of Personal Data?, in TECHNOLOGY
AND PRIVACY: THE NEW LANDSCAPE, 99, 113-14 (Philip E. Agre & Marc Rotenberg
eds., 1997); Paul M. Schwartz, European Data Protection Law and Medical
Privacy, in GENETIC SECRETS 397 (Mark A. Rothstein ed. 1997).
[FN12]. See DONALD E. BERENBEIM, EMPLOYEE
PRIVACY 2 (Conference Board Research Report No. 945, 1990).
[FN13]. For example, the classic Fourth
Amendment "reasonable expectation of privacy" analysis used in cases
of governmental wiretapping and surveillance. See e.g., Katz v. U.S., 389 U.S. 347 (1967),
California v. Ciraolo, 476 U.S.
207 (1986); and the employment cases, see e.g., Briggs v. American Air Filter
Co., 630 F.2d 414, 419 (5th Cir. 1980), Watkins v. L.M. Berry & Co.,
704 F.2d 577, 583 (11th Cir. 1983), Epps v. St. Mary's Hosp. of Athens,
Inc., 802 F.2d 412, 416-17 (11th
Cir. 1986), that distinguish the monitoring of personal calls,
deemed private, from business calls.
[FN14]. An example is the German
Constitutional Court (BVerfG) and the Supreme Labor Court (BAG) have on several
occasions confirmed that the German Constitution (Basic Law), Article 1,
Section 1, (which states: "Human dignity is inviolable. To respect and
protect it is the duty of all state authority") and Article 2, Section 1
(which states: "Everyone has the right to the free development of his
personality insofar as he does not violate the rights of others or offend
against the constitutional order or the moral law") together establish
protections for informational self-determination and autonomy of citizens and
workers with respect to both government and private parties. See Judgment of
July 16, 1969, 27 BVerfGE 1; Judgment of June 21, 1977, 45 BVerfGE 187, 229;
Judgment of December 15, 1983, 65 BVerfGE 1; and Judgment of October 22, 1986,
53 BAGE 226, 233. See French and Italian examples in the text to follow.
[FN15]. See Ernest van den Haag, On
Privacy, in PRIVACY: NOMOS XIII 150, 151 (J. Roland Pennock & John W.
Chapman eds., 1971).
[FN16]. See William L. Prosser, Privacy, 48
CAL. L. REV. 383, 389 (1960).
[FN17]. See id. at 389-91.
[FN18]. Id. at 391.
[FN19]. See C.B. MACPHERSON, THE POLITICAL
THEORY OF POSSESSIVE INDIVIDUALISM 3 (1970).
[FN20]. See id.
[FN21]. See id. at 263.
[FN22]. See id. at 142, 264.
[FN23]. See id. at 3, 263.
[FN24]. See id. at 275; COLIN J. BENNETT,
THE POLITICAL ECONOMY OF PRIVACY: A REVIEW OF THE LITERATURE 8 (Report for the
Center for Social and Legal Research, Dep't Energy, Human Genome Project 1995).
[FN25]. See Speer v. Ohio Dep't of
Rehabilitation & Correction, 624 N.E.2d 251, 254 (Ohio Ct. App.
1993); Amoco Petroleum Additives Co. v.
Jackson, 964 F.2d 706, 707 (7th Cir. 1992); Doe by Doe v. B.P.S. Guard
Services., Inc., 945 F.2d 1422 (8th Cir. 1991); Harkey v. Abate, 346 N.W.2d 74
(Mich. Ct. App. 1983); Souder v. Pendleton Detectives, 88
So. 2d 716 (La. Ct. App. 1956).
[FN26]. Payne v. Western & Atl. R.R.
Co., 81 Tenn. 507, 519-20 (1884); See also Paul F. Gerhart, Employee Privacy Rights in the
United States, 17 COMP. LAB. L.J. 175, 184 (1995).
[FN27]. See Madison Powers, Justice and
Genetics: Privacy Protection and the Moral Basis of Public Policy, in GENETIC
SECRETS 355, 365 (Mark A. Rothstein ed. 1997).
[FN28]. See Sonia Le Bris & Barta Maria
Knoppers, International and Comparative Concepts of Privacy, in GENETIC SECRETS
418, 419, 424, 426 (Mark A. Rothstein ed. 1997).
[FN29]. ALAN F. WESTIN, PRIVACY AND FREEDOM
33 (1967).
[FN30]. See Philip E. Agre, Beyond the
Mirror World: Privacy and the Representational Practices of Computing, in
TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE 29, 46-52 (Philip E. Agre & Marc
Rotenberg eds. 1997).
[FN31]. See Rohan Samarajiva, Interactivity
as though Privacy Mattered, in TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE, 277,
283-86 (Philip E. Agre & Marc Rotenberg eds. 1997); Edward J. Bloustein,
Privacy as an Aspect of Human Dignity, in PHILOSOPHICAL DIMENSIONS OF PRIVACY:
AN ANTHOLOGY 6, 156 (Ferdinand D. Schoeman, ed. 1984); Larry O. Natt Gantt, An Affront to Human Dignity:
Electronic Mail Monitoring in the Private Sector Workplace, 8 HARV. J.L. &
TECH. 345, at text accompanying notes 440-64 (1995); Spiros Simitis,
From the General Rules on Data
Protection to a Specific Regulation of the Use of Employee Data: Policies and
Constraints of the European Union, 19 COMP. LAB. L. & POL'Y J. 351, 358-60
(1998).
[FN32]. See Jean-Emmanuel Ray & Jacques
Rojot, Worker Privacy in France, 17 COMP.
LAB. L.J. 61, 62 (1995).
[FN33]. See LAWRENCE E. ROTHSTEIN, PLANT
CLOSINGS: POWER, POLITICS, AND WORKERS 93-94, 100 (1986).
[FN34]. See id. at 102-3.
[FN35]. GERARD LYON-CAEN, LES LIBERTES
PUBLIQUES ET L'EMPLOI 154 (1992) (emphasis added).
[FN36]. See id.
[FN37]. Id.
[FN38]. See id. at 128.
[FN39]. See ROTHSTEIN, supra note 33, at
102.
[FN40]. See id. at 104-5.
[FN41]. See Statuo dei Lavoratori, Law no.
300 of 20 May 1970, Giurnale Ufficiale (Giur. Uff.), May 27, 1970, no. 131
(visited Mar. 23, 2000) < http://www.unipa.it/cdl/lexall/dc1/70n300.txt>.
[FN42]. See Roberto Romei & Silvana
Sciarra, The Protection of Employees' Privacy:
A Survey of Italian Legislation and Case Law, 17 COMP. LAB. L.J. 91 (1995).
[FN43]. See id. at 91-92.
[FN44]. See id. at 93-94.
[FN45]. See id. at 96-97, 99.
[FN46]. See Roberto Romei, Diritto alla
riservatezza del lavoratore ed innovazione tecnologica, 15 QUADERNI DI DIRITTO
DEL LAVORO E DELLE RELAZIONI INDUSTRIALI 67, 71-2 (1994); Alessandro
Bellavista, Diritti della persona e contratto di lavoro nella elaborazione
Giurisprudenziale, 15 QUADERNI DI DIRITTO DEL LAVORO E DELLE RELAZIONI
INDUSTRIALI 197, 209 (1994).
[FN47]. See Le Bris & Knopfers, supra
note 28, at 422-23; PIERRE KAYSER, LA PROTECTION DE LA VIE PRIVEE 77-78 (3d ed.
1995); Bennett, supra note 11, at 106-7.
[FN48]. See S. Elizabeth Wilborn, Revisiting the Public/Private
Distinction: Employee Monitoring in the Workplace, 32 GA. L. REV. 825, 828-30
(1998); David Neil King, Privacy Issues in the Private
Sector Workplace: Protection from Electronic Surveillance and the Emerging
Privacy Gap, 67 S. CAL. L. REV. 441, 443-44 (1994);
Heather Hanson, The Fourth Amendment in the Workplace:
Are We Really Being Reasonable?, 79 VA. L. REV. 243, 243-48 (1993).
[FN49]. See Hanson, supra note 49, at
248-57.
[FN50]. See KAYSER, supra note 47, at 19.
[FN51]. See Le Bris & Knopfers, supra
note 28, at 427-28.
[FN52]. Olivier de Tissot, La Protection de
la Vie Privee du Salarie, 1995 DROIT SOCIAL 222, 230.
[FN53]. See Romei & Sciarra, supra note
42, at 91.
[FN54]. See Le Bris & Knopfers, supra
note 28, at 430.
[FN55]. Law No. 78-17 of Jan. 6, 1978,
J.O., Jan. 7, 1978, p. 227; 1978 D.S.L. 77.
[FN56]. Law No. 70-643 of July 17, 1970,
J.O., July 19, 1970, p. 6751; 1970 D.S.L. 200.
[FN57]. Law No. 92-1446 of Dec. 31 1992,
J.O., 1992, p. 19; 1992 D.S.L. 110.
[FN58]. Convention of the Council of Europe
for the Protection of Individuals with Regard to Automatic Processing of
Personal Data, opened for signature Jan. 28, 1981, Eur. T.S. No. 108, reprinted
in 20 I.L.M. 317 (1981). See also HUBERT BOUCHET, L'INFORMATIQUE APPLIQUEE AU
CONTROLE D'ACTIVITE ET A LA SURVEILLANCE SUR LES LIEUX DE TRAVAIL: ENJEUX ET
RISQUES POUR LA PROTECTION DE LA VIE PRIVEE DES SALARIES 6 (1995).
[FN59]. See C. TRAV. art. L.432-2-1.
[FN60]. See de Tissot, supra note 52, at
225.
[FN61]. See C.TRAV. art. L. 121-8.
[FN62]. See Ray & Rojot, supra note 32,
at 68-73; BOUCHET, supra note 58, at 6-11; CNIL, Les ecoutes telephoniques, in
INFORMATIQUE ET LIBERTES: LIEU DE TRAVAIL 1-2 (1999).
[FN63]. See Law No. 78-17 of Jan. 6, 1978,
J.O., Jan. 7, 1978, p. 227; 1978 D.S.L. 77.
[FN64]. See id. at art. 6.
[FN65]. See id. at arts. 14-22.
[FN66]. See id. at art. 19.
[FN67]. See id. at art. 21; cf. CNIL,
INFORMATIQUE ET LIBERTES: DOCUMENTATION GENERALE 4-6 (Doc. no. 36-15 1996).
[FN68]. See David H. Flaherty, PROTECTING
PRIVACY IN SURVEILLANCE SOCIETIES: THE FEDERAL REPUBLIC OF GERMANY, SWEDEN,
FRANCE, CANADA, AND THE UNITED STATES, 172-74, 188-91 (1989); Interview with
Alain Chouraqui, Labor Sociologist, L.E.S.T./C.N.R.S., Aixen-Provence (April 5,
1996) (on file with author); GUY BRAIBANT, DONNEES PERSONNELLES ET SOCIETE DE
L'INFORMATION: RAPPORT AU PREMIER MINISTRE SUR LA TRANSPOSITION EN DROIT
FRANCAIS DE LA DIRECTIVE NO. 95/46 19 (Conseil d'Etat 1998); cf. CNIL, supra
note 62, at 14.
[FN69]. Law No. 78-17 of Jan. 6, 1978 at
art. 8, J.O., Jan. 7, 1978, p. 227; 1978 D.S.L. 77.
[FN70]. See Law No. 92-1446 of Dec. 31 1992,
J.O., 1992, p. 19; 1992 D.S.L 110; Convention of the Council of Europe for the
Protection of Individuals with Regard to Automatic Processing of Personal Data,
opened for signature Jan. 28, 1981, Eur. T.S. No. 108, reprinted in 20 I.L.M.
317 (1981); BOUCHET, supra note 58.
[FN71]. C.TRAV. art. L. 120-2.
[FN72]. See C.TRAV. art. L. 122-35; Act of
Aug. 4, 1982.
[FN73]. C.CIV. art. 9.
[FN74]. See de Tissot, supra note 52, at
226; Manuela Grevy, Videosurveillance dans l'Entreprise: un Mode Normal de
Controle des Salaries? 1995 DROIT SOCIAL 329, 331 (1995); CNIL, La
Videosurveillance sur le Lieu de Travail, in INFORMATIQUE ET LIBERTES: LIEU DE
TRAVAIL 1 (1997).
[FN75]. See SA Neocel, Cass. Soc., 20 Nov.
1991.
[FN76]. See Perez c./SA Beli Intermarche,
CA Aix-en-Provence, Jan. 4, 1994.
[FN77]. See generally Jean Fraysinnet,
Nouvelles technologies et protection des libertes dans l'entreprise, 1992 DROIT
SOCIAL 596, 598-602 (no. spec. 1992); Ariane Mole, Au dela de la loi
informatique et libertes, 1992 DROIT SOCIAL 603, 607-8 (1992).
[FN78]. See Madame Arnoult c./Societe SST,
TC Paris (17e), Feb. 5, 1991, 1992 DROIT SOCIAL 541.
[FN79]. See Anne Hidalgo, Un nouveau role
pour l'administration du travail? 1992 DROIT SOCIAL 538, 540 n. 18 (1992).
[FN80]. See id. at 540.
[FN81]. See id. at 540-41.
[FN82]. See id. at 541, 543.
[FN83]. See id. at 542.
[FN84]. See 1 RAPPORT DE LA COMMISSION
INFORMATIQUE ET LIBERTES 11-13 (1975).
[FN85]. See id. at 10.
[FN86]. Act 78-17 of 6 January 1978, Art.
1.
[FN87]. See Le Bris & Knopfers, supra
note 28, at 424.
[FN88]. Flaherty, supra note 68, at 178.
[FN89]. See BRAIBANT, supra note 68, at 41.
[FN90]. Commission nationale de
l'informatique et des libertes, 14E RAPPORT D'ACTIVITE 6 (1993).
[FN91]. Id.
[FN92]. CNIL, supra note 7, at 6.
[FN93]. Id. at 7.
[FN94]. LYON-CAEN, supra note 35, at 83,
128.
[FN95]. See Martine Aubry & Pierre-Louis
Remy, Le droit du travail a l'epreuve des nouvelles technologies, 1992 DROIT
SOCIAL 522, 523. Martine Aubry was the Minister of Labor who authored the Aubry
Laws for the government.
[FN96]. See LYON-CAEN, supra note 35, at
116.
[FN97]. See id. at 148, 158.
[FN98]. See id. at 117, 154.
[FN99]. Id. at 155.
[FN100]. Id. at 128-29, 156.
[FN101]. See Directive 95/46/EC of Oct. 24,
1995, O.J. 1995, (L 281/31).
[FN102]. See BRIABANT, supra note 68, at
30, 45, 59.
[FN103]. See id. at 11-12.
[FN104]. See id. at 96-97.
[FN105]. See id. at 91-93; Conference de
Presse de Monsieur Lionel Jospin, Premier Ministre, a l'Issue du Comite
Interministeriel pour la Societe de l'Information, Hotel de Matignon, 4, 5
(visited Mar. 23, 2000) <http:// www.cnil.fr/homcnil.htm>.
[FN106]. See Ray & Rojot, supra note
32, at 71-73.
[FN107]. See Interview with Vincenzo
Ferrante, Prof. of Labor Law, in Instituto Giuridico-CEDRI Universita Cattolica
de S.Cuore, Milan, Italy (Apr. 20, 1997) (on file with author).
[FN108]. Statuo dei Lavoratori, Law no. 300
of May 20, 1970, tit. 1, Gazz. Uff., May 27, 1970, no. 131 (visited Mar. 23,
2000) <http:// www.unipa.it/cdl/lexall/dc1/70n300.txt>.
[FN109]. See id. arts. 1, 4, 6 and 8;
Spiros Simitis, Il diritto del lavoro e la riscoperta dell'individuo, 45 DLRI
87 (1990).
[FN110]. See Statuo dei Lavoratori, Law no.
300 of May 20, 1970, art. 4, para. 1, Gazz. Uff., May 27, 1970, no. 131
(visited Mar. 23, 2000) <http:// www.unipa.it/cdl/lexall/dc1/70n300.txt>.
[FN111]. See id. at art. 4, para. 2.
[FN112]. See Romei & Sciarra, supra
note 42, at 94.
[FN113]. See id. at 93.
[FN114]. Id. at 96-97.
[FN115]. See Tutela delle Persone e di
altri Soggetti Rispetto al Trattamento dei Dati Personali, Law of Dec. 31,
1996, no. 675, art. 11 (Italy) (visited Mar. 23, 2000) <http://
www.parlamento.it/parlam/leggi/elelenum.htm>.
[FN116]. Id. art. 30.
[FN117]. See Ferrante Interview, supra note
107.
[FN118]. See Romei, supra note 46, at 70.
[FN119]. See Ferrante Interview, supra note
107.
[FN120]. See Bellavista, supra note 46, at
209-10.
[FN121]. See Romei & Sciarra, supra
note 42, at 93-94.
[FN122]. See Bellavista, supra note 46, at
209-10.
[FN123]. See Judgment of Dec. 5, 1984,
Pret. Milano, Riverso ed altri dirigenti della IBM Italia S.p.A., 1985 RIDL
209.
[FN124]. See Ferrante Interview, supra note
107.
[FN125]. See Statuo dei Lavoratori, Law no.
300 of 20 May 1970, art. 38, Gazz. Uff., May 27, 1970, no. 131 (visited Mar.
23, 2000) <http:// www.unipa.it/cdl/lexall/dc1/70n300.txt>.
[FN126]. See Judgment of Dec. 5, 1984, 1985
RIDL 209, 210.
[FN127]. See id. at 210-11.
[FN128]. See id. at 212-13.
[FN129]. See id. at 214.
[FN130]. Statuo dei Lavoratori, Law no. 300
of 20 May 1970, art. 4, para. 1, Gazz. Uff., May 27, 1970, no. 131 (visited
Mar. 23, 2000) <http:// www.unipa.it/cdl/lexall/dc1/70n300.txt>.
[FN131]. Id. art. 4, para. 2.
[FN132]. Id.
[FN133]. See Judgment of Dec. 5, 1984,
Pret. Milano, Riverso ed altri dirigenti della IBM Italia S.p.A., 1985 RIDL
209, 214-15.
[FN134]. See id. at 216, 230.
[FN135]. See Romei, supra note 46, at 72.
[FN136]. See Judgment of Dec. 5, 1984, 1985
RIDL 209, 224, 229.
[FN137]. See id. at 229-30.
[FN138]. See id. at 231-35.
[FN139]. See id. at 238-39.
[FN140]. See id. at 240-41.
[FN141]. See id. at 241-43.
[FN142]. See id. at 243-44.
[FN143]. See id. at 245-48.
[FN144]. See id. at 252.
[FN145]. See id. at 222-23.
[FN146]. See id. at 224.
[FN147]. See id. at 225.
[FN148]. See id. at 241; Accordo IBM-SEMEA,
Milano e RSA, Feb. 23, 1982.
[FN149]. See Interview with Chief of
Personnel, IBM-SEMEA, Milan (Jan. 7, 1998) (on file with author).
[FN150]. See Mariella Magnani, Diritti
della persona e contratto di lavoro: L'esperienza Italiana, 15 QUADERNI DI
DIRITTO DEL LAVORO E DELLE RELAZIONI INDUSTRIALI 47, 53 (1994); Bellavista,
supra note 46, at 198.
[FN151]. See Romei & Sciarra, supra
note 41, at 96-97.
[FN152]. See id. at 91.
[FN153]. See Magnani, supra note 150, at
50-51.
[FN154]. See Schwartz, supra note 11, at
408; Mark A. Rothstein, Genetic Secrets: A Policy Framework, in GENETIC
SECRETS, 454 (Mark A. Rothstein ed. 1997).
[FN155]. See e.g., Robert Gellman, Does
Privacy Law Work?, in TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE, 193, 209-11
(Philip E. Agre & Marc M. Rotenberg eds., 1997); Kevin J. Conlon, The
Kenneth M. Piper Lecture: Privacy in the Workplace, 72
CHI.-KENT L. REV. 285, 286 (1996).
[FN156]. See U.S. Const. amend. IV.
[FN157]. See 18 U.S.C. § 2510 (1994).
[FN158]. See, e.g., Alaska Const., art. I, § 22;
Cal. Const., art. I, § 1;
Fla. Const., art. 1, § 23;
Haw. Const., art. I, § 6,
7; Ill. Const., art. I, § 12;
La. Const., art. 1, § 5;
Mont. Const., art. II, § 9;
S.C. Const., art. 1, § 10; Wash. Const., art. I, § 7;
R.I. Gen. Laws, § 12-5.1-1 (1999).
[FN159]. See, e.g., cases dealing with the
surveillance of workers after they filed work injury claims such as: Johnson v. Corporate Special
Serv., Inc., 602 So.2d 385, 386 (Ala. 1992) and Alabama Elec. Coop. v. Partridge,
225 So.2d 848, 851 (Ala. 1969).
[FN160]. U.S. Const., amend. IV § 1.
[FN161]. See O'Connor v. Ortega, 480 U.S. 709,
716 (1987); Mancusi v. De Forte, 392 U.S. 364,
369 (1968).
[FN162]. See O'Connor, 480 U.S. at 714, 718;
Simmons v. Southwestern Bell Tel.
Co., 452 F. Supp. 392, 394-95 (W.D. Okla. 1978), aff'd., 611 F.2d 342 (10th Cir. 1979).
[FN163]. See O'Connor, 480 U.S. at 717.
[FN164]. See Hanson, supra note 48, at
249-51; Gantt, supra note 31, at 385.
[FN165]. See O'Connor, 480 U.S. at 717.
[FN166]. See id. at 726.
[FN167]. See e.g., Diaz Camacho v. Lopez Rivera, 699
F. Supp. 1020, 1024- 25 (D.P.R. 1988).
[FN168]. See Hanson, supra note 48, at 256;
Gantt, supra note 31, at 382; cf. Schowengerdt v. General Dynamics
Corp., 823 F.2d 1328, 1334 (9th Cir. 1987); Schowengerdt v. United States, 944
F.2d 483, 488 (9th Cir. 1991), cert. denied, 503 U.S. 951 (1992); Shields v. Burge, 874 F.2d 1201,
1208- 9 (7th Cir. 1989); American Postal Workers Union v.
United States Postal Serv., 871 F.2d 556, 560 (6th Cir. 1989); Simmons v. Southwestern Bell Tel.
Co., 452 F. Supp. 392, 396 (W.D. Okla. 1978), aff'd, 611 F.2d 342 (10th Cir. 1979).
[FN169]. See Bohach v. City of Reno, 932 F.
Supp. 1232, 1234-35 (D. Nev. 1996); Williams v. Philadelphia Hous.
Auth., 826 F. Supp. 952, 954 (E.D. Pa. 1993); Star Publ'g Co. v. Pima County
Attorney's Office, 891 P.2d 899, 901 (Ariz. Ct. App. 1994); Hanson,
supra note 48, at 257.
[FN170]. See e.g., United States v. Jacobsen, 466
U.S. 109, 113-14 (1984) and Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 349 (1974).
[FN171]. 18 U.S.C. §§ 2510-2521, 2701-2710, 3117, 3121- 3126 (1994).
[FN172]. See Wilborn, supra note 48, at
839-40.
[FN173]. See 18 U.S.C. § 2511(1)(a) (1994).
[FN174]. See 18 U.S.C. §§ 2511(2)(a)(i)
& 2701(c)(1) (1994). The
latter section also allows provider access to stored communications. See id.
[FN175]. See id. The statute exempts an
officer, agent or employee of a provider of a "wire or electronic
communication service, whose facilities are used in transmission of a wire
communication...." Id.
[FN176]. See id. It goes on to state that
the exempted provider may "intercept, disclose or use that communication
in the normal course of his employment while engaged in any activity which is necessary
incident to the rendition of his service or to the protection of the rights or
property of the provider of that service." Cf. Lois R. Witt, Terminally Nosy: Employers Free to
Access our Electronic Mail?, 96 DICK. L. REV. 545, 551 (1992).
[FN177]. 18 U.S.C. § 2510(5)(a)(i) (1994).
[FN178]. See James v. Newspaper Agency Corp.,
591 F.2d 579, 581 (10th Cir. 1979).
[FN179]. See Watkins v. L.M. Berry & Co.,
704 F.2d 577, 583 (11th Cir. 1983).
[FN180]. See Bohach v. City of Reno, 932 F.
Supp. 1232, 1234-35 (D. Nev. 1996); Epps v. St. Mary's Hosp., 802 F.2d
412, 417 (11th Cir. 1986).
[FN181]. See 18 U.S.C. § 2511(2)(d) (1994).
[FN182]. See Griggs-Ryan v. Connelly, 904 F.2d
112, 116, 117 (1st Cir. 1990).
[FN183]. See Watkins, 704 F.2d at 581-82.
[FN184]. See George v. Carusone, 849 F. Supp.
159, 163 (D. Conn. 1994); but see Deal v. Spears, 980 F.2d 1153,
1157 (8th Cir. 1992).
[FN185]. See Payne v. Western & Atl.
R.R. Co., 81 Tenn. 507, 519-20 (1884); Paul F. Gerhart, Employee Privacy Rights in the
United States, 17 COMP. LAB. L.J. 175, 184 (1995).
[FN186]. See 18 U.S.C. § 2510(5)(a)(i) (1994).
[FN187]. See U.S. v. Mullins, 992 F.2d 1472
(9th Cir. 1992). Cf. Kevin Baum, E-Mail in the Workplace and the
Right of Privacy, 42 VILL. L. REV. 1011, 1029-30 (1997).
[FN188]. 18 U.S.C. § 2511(17)(A)&(B)
(1994).
[FN189]. For cases, see supra notes 179-80,
183-85; for commentators, see infra note 190.
[FN190]. Wilborn, supra note 48, at 848-49;
Anne L. Lehman, Comment: E- mail in the Workplace: Question
of Privacy, Property or Principle?, 5 COMMLAW CONSPECTUS 99, at text
accompanying notes 25-39 (1997); Rod Dixon, Windows Nine-to-Five: Smyth v.
Pillsbury and the Scope of an Employee's Right of Privacy in Employer
Communications, 2 VA. J.L. & TECH 4 at text accompanying notes
39-42 (1997); Conlon, supra note 155, at 287-88; Gantt, supra note 31, at 350;
Thomas R. Greenberg, E-Mail and Voice Mail: Employee
Privacy and the Federal Wiretap Statute, 44 AM. U. L. REV. 219, 251 (1994);
Laurie Thomas Lee, Watch Your E-mail! Employee E-Mail
Monitoring and Privacy Law in the Age of the "Electronic Sweatshop",
28 J. MARSHALL L. REV. 139, 157 (1994); Donald R. McCartney,
Comment: Electronic Surveillance and the
Resulting Loss of Privacy in the Workplace, 62 UMKC
L. REV. 859, 890 (1994); Julia Turner Baumhart, The Employer's Right
to Read Employee E-Mail: Protecting Property or Personal Prying?, 8 Lab. L.
923, 925 (1992).
[FN191]. See Parrish v. Northern Telecom,
C.A. no. 3-90-0790 (M.D. Tenn. 1990); Northern Telecom Bans Secret Monitoring;
CWA Agreement Sets Major Privacy Precedent, PR NEWSWIRE, Jan. 30, 1992,
available in LEXIS/NEXIS, PRNEWS File.
[FN192]. See Hill v. National Collegiate
Athletic Ass'n, 865 P.2d 633, 641 (Cal. 1994); Porten v. Univ. of S. F., 134 Cal.
Rptr. 839 (1976); Semore v. Pool, 266 Cal. Rptr. 280
(Ct. App. 1990), reh. den. 5 I.E.R. Cas. (BNA) 672 (1990). See also
Conlon, supra note 155, at 287; Wilborn, supra note 48, at n.65; Lee, supra
note 190, at 144.
[FN193]. See Luck v. Southern Pac. Transp.
Co., 267 Cal. Rptr. 618 (Ct. App. 1990), cert. den. 111 S.Ct. 344 (1980).
[FN194]. See Flanagan v. Epson Am., No.
BC007036, slip op. at 4 (Cal. Super. Ct. Jan. 4, 1991); cf. Baum, supra note
187, at 1019-20.
[FN195]. See Flanagan, slip op. at 4.
[FN196]. The only states that do not have
such statutes are South Carolina and Vermont.
[FN197]. California, Connecticut, Delaware,
Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Montana, New
Hampshire, Pennsylvania, and Washington all require both parties' consent to
the monitoring. See Cal. Penal Code §§ 631(a),
632(a) (West 1996); Conn. Gen. Stat. § 52-570d (1997);
Del. Code Ann. tit. 11, § 1336(b)
(1995); Fla. Stat. ch. 934.03(2)(d) (1995); Ga. Code Ann. § 16-11-66(a) (1996);
720 Ill. Comp. Stat. § 5/14-2
(West 1993); Md. Code Ann., Cts. & Jud.
Proc. § 10- 402(c)(3) (1995); Mass. Gen. Laws Ann. ch. 272 99(B)(4)
(West 1990); Mich. Comp. Laws Ann. § 750.539c
(West 1991); Mont. Code Ann. § 45-8- 213(c)
(1995); N.H. Rev. Stat. Ann. § 570-A:2
(1986); 18 Pa. Cons. Stat. Ann. § 5703-04
(West 1995); Wash. Rev. Code Ann. §
9.73.030(1)(b) (West 1988).
[FN198]. These jurisdictions are Alabama,
Delaware, the District of Columbia, Georgia, Idaho, Indiana, Iowa, Kentucky,
Louisiana, Maine, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey,
New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South
Dakota, and Texas.
[FN199]. See Conlon, supra note 155, at
289; Lee, supra note 191, at Table 2.
[FN200]. See People v. Beardsley, 503 N.E.2d
346, 350 (Ill. App. Ct. 1986).
[FN201]. See Lee, supra note 190, at 146.
On lobbying over privacy concerns, see generally Matthew W. Finkin, The Kenneth
M. Piper Lecture: Employee Privacy, American Values
and the Law, 72 CHI.-KENT L. REV. 221, 224 (1996).
[FN202]. Restatement (Second) of Torts §
652A (1977).
[FN203]. See, e.g., Baggs v. Eagle-Picher Indus., Inc.,
957 F.2d 268, 274 (6th Cir. 1992); Thomas v. General Elec. Co., 207
F.Supp. 792, 799 (W.D. Ky. 1962); Jackson v. Nationwide Credit,
Inc., 426 S.E.2d 630, 632 (Ga. Ct. App. 1992); King, supra note 48,
at 460-61.
[FN204]. See Finkin, supra note 201, at
256.
[FN205]. See Pauline T. Kim, Privacy Rights, Public Policy, and
the Employment Relationship, 57 OHIO ST. L.J. 671, 675-76 (1996);
Wilborn, supra note 48, at 834-35.
[FN206]. See Roe v. Quality Transportation
Services, 838 P.2d 128 (Wash. 1992); Jennings v. Minco Tech. Labs.
Inc., 765 S.W.2d 497, 499-502 (Tex. 1989); King, supra note 48, at
457.
[FN207]. 914 F. Supp. 97 (E.D. Pa. 1996).
[FN208]. See id. at 98.
[FN209]. See id. at 98-99.
[FN210]. See id. at 99.
[FN211]. See id. at 101.
[FN212]. See id.
[FN213]. See id.
[FN214]. See generally Dixon, supra note
190. See also Finkin, supra note 201, at 227-28; Lehman, supra note 190, at
105-7.
[FN215]. Barksdale v. IBM Corp., 620 F.
Supp. 1380, 1383 (W.D.N.C. 1985), aff'd, 1 I.E.R. Cas. (BNA) 560
(4th Cir. 1986).
[FN216]. See Gantt, supra note 31, at text
accompanying notes 223-25; Wilborn, supra note 48, at 845; Robert G. Boehmer, Artificial Monitoring and
Surveillance of Employees: The Fine Line Dividing the Prudently Managed
Enterprise from the Modern Sweatshop, 41 DEPAUL L. REV. 739, 804-5 (1992).
[FN217]. See Samuel D. Warren and Louis D.
Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
[FN218]. Id. at 205.
[FN219]. Bloustein, supra note 31, at 163.
[FN220]. Id. at 191.
[FN221]. Ruth Gavison, Privacy and the
Limits of Law, 89 YALE L.J. 421, 423-4 (1980).
[FN222]. See e.g. Sanders v. Robert Bosch Corp., 38
F.3d 736 (4th Cir. 1994); Deal v. Spears, 980 F.2d 1153 (8th
Cir. 1992); United States v. Harpel, 493 F.2d
346 (10th Cir. 1974); James v. Newspaper Agency Corp.,
591 F.2d 579 (10th Cir. 1979).
[FN223]. See JAMES RULE ET AL., THE
POLITICS OF PRIVACY: PLANNING FOR PERSONAL DATA SYSTEMS AS POWERFUL
TECHNOLOGIES 22 (1980).
[FN224]. See COLIN J. BENNETT, REGULATING
PRIVACY 252 (1992).
[FN225]. See H.R. 1900, 103rd Cong.,
(1993); S. 984, 103rd Cong., (1993).
[FN226]. See Hearing on H.R. 1900 Before
the Subcomm. on Labor-Management Relations of the House Comm. on Educ. and
Labor, 103rd Cong., 16, 62 (1993); Hearing on S. 984 Before the Subcomm. on
Employment and Productivity of the Senate Comm. on Labor and Human Resources,
103rd Cong. 21 (1993).
[FN227]. See id.
[FN228]. S. 984, 103rd Cong. § 2(1)(A)
(1993).
[FN229]. See id. at § 4(b).
[FN230]. See id. at § 4(b)(1)-(3).
[FN231]. See id. at § 4(b)(4)-(5), (8).
[FN232]. See id. at § 4(c)(2).
[FN233]. See id. at § 5(b)(1).
[FN234]. See id. at § 5(b)(2).
[FN235]. See id. at § 5(b)(3).
[FN236]. See id. at § 8(a).
[FN237]. See id. at § 8(b)(1)-(2).
[FN238]. See id. at § 9(a)(1)-(3).
[FN239]. See id. at § 9(b)(B)(1)-(3).
[FN240]. See id. at § 9(c)(1).
[FN241]. Shefali N. Baxi & Alisa A.
Nickel, Big Brother or Better Business:
Striking a Balance in the Workplace, 4 KAN. J.L. & PUB. POL'Y 137, 145
(1994). Concerning earlier attempts at passing such legislation, cf.
Note, Addressing the New Hazards of the
High Technology Workplace, 104 HARV. L. REV. 1898, 1908-9 (1991).
[FN242]. See Hearing on S. 984 Before the
Subcomm. on Employment and Productivity of the Senate Comm. on Labor and Human
Resources, 103rd Cong. 21 (1993).
[FN243]. See id.
[FN244]. See id.
[FN245]. See id.
[FN246]. See id., Baxi & Nickel, supra
note 241, and Note, supra note 241.