Employee Privacy, Employer Policy

Employee Privacy, Employer Policy
Mark Rasch, 2006-10-31

Mark Rasch looks at two recent court cases where an employee's reasonable expectation of privacy was more important than the employer's ability to read any employee's e-mail - despite a privacy policy that clearly stated any company e-mail can, and will, be monitored.

Your organization has a computer and Internet use policy. Fine. It’s been reviewed by corporate counsel, approved by senior management, and implemented over the years. The policy is comprehensive - it includes policies on expectations of privacy, employee monitoring, and the ownership of corporate electronic assets. Now, during the course of an internal investigation, you want to read an employees' e-mail, examine the contents of his company-supplied computer, and review his telephone calls made on the company-owned cell phone. You are all set, right? Umm... not so fast.

A pair of recent cases in the United States raise the fundamental question, "do you have a reasonable expectation of privacy at the workplace?" In the United States at least, most people confronted with this question would answer a resounding no, right? I mean, the company policy makes it clear that the computer and network are company property, and that we shouldn’t expect any privacy there.

However, there is a genuine divergence between what companies say and what they do. There is also a divergence between what employees regurgitate about their expectations of privacy (corporate mantra) and how they actually act. My own answer to the question, "do I have a reasonable expectation of privacy in the workplace?" – of course! What we really need to do is better define the scope of that reasonable expectation of privacy.

Policy policy policy

In the course of an average day at work, an employee leaves a great deal of "digital detritus" – a trail of activities. The ownership of these digital records, as well as an employees’ privacy rights with respect to them is not entirely clear under the law. Employers provide employees with a number of tools that leave a digital trail. This may include their computers, email accounts, Internet access, VPN access, regular phone, VOIP service, cell phone, alphanumeric pager, RSA SecurID token, not to mention the video surveillance, and records of badge entry and exit.

Complicating these issues are the questions of ownership, access and rights. For example, an employer may purchase a cell phone for an employee and retain ownership of the phone. Or it may allow the employee to buy the phone, but register it on a corporate plan for service. It may reimburse the employee for all telephone calls made or require the employee to demonstrate the business nature of calls reimbursed. Employees may telecommute from home using either employer or employee supplied equipment. The Internet connection to the office may be paid for by the employee or the employer. When logging on remotely, does the ISP have any right to monitor content? When a VPN connection is made, who may monitor what happens on the VPN? May your employer burst into your home, seize your personal computer (that you own, but store some of their files on) and take it?

Privacy in the workplace extends beyond the electronic workplace. For example, can your employer read your personal mail, sent to your office address – even if it is marked "personal and confidential – addressee only?" Can your employer videotape you in the office? Audiotape you? What about in the restrooms, lounges, parking lots, or in your car?

It’s easy to say that employees have no expectation of privacy, and even to post corporate policies and notices to that effect. But do you really mean it? And do you really enforce it? The answer to both questions is probably no.

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Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."