Electronic handout (120 KB pp file)
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  • The phrase was actually borrowed from Thomas McIntyre Cooley “The Law of Torts”. 1888. .
  • This speaks more for the framers wanting to create a structure of government rather than a prescription of rights. Amendments were written in 1791. Its strengths lie in the willingness of judges to interpret key amendments
  • Bathroom monitoring.
  • Any message sent to a server that is publicly owned is considered pubic information.

Electronic handout (120 KB pp file) Electronic handout (120 KB pp file) Presentation Transcript

  • Public Jobs Private Thoughts Workplace Privacy and Technology Caylen Tichenor Oconee RESA
  • Defining Privacy
    • Privacy is the right to be left alone.
      • Louis Brandeis and Samuel Warren “Harvard Law Review” December 1890.
  • Defining Privacy
    • Defining Case #1
      • Roberson vs. Rochester Folding Box Co. 1902
        • Invasion of privacy exists only when there is maliciousness or direct monetary gain.
  • Defining Cases
    • Defining Cases
        • 2 Boyd vs. U.S. 1886
        • 3 Union Pacific Railway Co. vs. Botsford 1891.
        • 4 Myer vs. Nebraska. 1923
        • 5 Pierce vs. Society of Sisters. 1926
        • 6 NAACP vs. Alabama. 1958
        • 7 Jones vs. U.S. 1960
        • 8 Griswold vs. Connecticut 1965
        • 9 Katz vs. U.S. 1967
  • Defining Cases
        • 10 Stanley vs. Georgia. 1969
        • 11 Roe vs. Wade 1973
        • 12 O’Connor vs. Ortega. 1987
        • 13 Skinner vs. Railway Labor Executives Assoc. 1989.
        • 14 United States vs. Maxwell, 1996
        • 15 United States vs. Simons, 1998
        • 16 United States vs. Smith, 1990
        • 14 Kyllo vs. Oregon 20001
  • Current definition of Privacy
    • Privacy is a situational right.
      • Definition depends on type of privacy.
        • Information privacy- deals with personal data.
        • Bodily privacy- deals with our physical self.
        • Privacy of communication- deals with mail, telephones and other forms of communicating.
        • Territorial privacy- deals with workplace or domestic privacy
  • Current definition of Privacy
    • Privacy is a inferred right.
      • Not found in Declaration, Constitution or Bill of Rights.
      • Outlined by Justice Douglas in Griswold vs. Connecticut. 1965.
  • 10 th amendment 1st amendment 3 rd amendment 4 th amendment 5 th amendment 9 th amendment NAACP vs. Alabama 1958 Stanley vs. GA. 1969 Griswold vs. Connecticut 1965 Kyllo vs. Oregon 2001
  • Current definition of Privacy
    • Privacy is a conditional, situational, implied, right.
      • Protects against “unreasonable” searches and seizures.
      • Protects against “self’ incrimination.
      • Is determined by type of privacy meant
      • Is not a total right.
  • So What?
  • Basic premises
    • Everyone is entitled to a “zone of privacy”.
    • Zones of privacy depend upon:
      • Environment.
      • Situation.
      • Need to know.
    • Once information is disseminated it can not be considered private.
    • If an object is in plain view, it’s seizure is not considered a invasion of privacy.
    • Only an individual who is the victim of the search or seizure if permitted to challenge it.
  • O’Connor vs. Ortega. 1987
    • 5-4 decision by the courts
    • Search warrants not needed by employers.
    • “ Reasonable expectation of privacy”
    • Reality of workplace may make some expectations unreasonable.
    • Must be addressed on a case by case basis.
    • Rights may be reduced by procedures.
  • Skinner vs. Railway Labor Executives Assoc. 1989.
    • Expectations of privacy by employees engaged in an industry regulated to ensure safety are diminished.
    • Testing procedures pose only limited threats.
    • Rights of the individual are superseded by the rights of the organization to conduct business.
  • United States vs. Maxwell 1996
    • Implicit promises or guarantees of privacy by commercial entities do not guarantee a constitutional expectation of privacy
    • Messages that are sent to the public at large (i.e. chat rooms) or from correspondent to correspondent lose any semblance of privacy.
  • United States vs. Simons
    • Employee cannot maintain expectation of privacy when there is a monitoring policy in place.
    • If the policy mandating supervision of appropriate use to the administration a search is justified at its inception.
  • Workplace privacy
    • The needs of the business outweigh the privacy of the individual.
    • Burden of proof is on employee.
    • Must prove “invasiveness.”
    • If there is no “reasonable expectation of privacy” there is no fourth amendment protection.
  • Workplace privacy
    • Consideration of a reasonable expectation of privacy depends on:
      • Who owns the system.
      • Who has access to the system
      • Whether the system is password protected.
      • What policies and practices apply to the system.
  • Specific workplace rights
    • Employers cannot eavesdrop on private phone calls.
    • Federal law does allow unannounced monitoring for business related calls.
    • If employer provides notice of monitoring and that communication systems shall be used for business purposes only monitoring of voice mail and email is permissible.
  • Specific workplace rights
    • Email can be treated as a written record and as such:
      • Can be considered public records subject to the same open-records law as paper documents.
      • Must be kept for same length of time as paper documents – NO “deleting”
      • Must have space provided for them on system servers.
  • Specific workplace rights
    • Telephone numbers dialed from phone extensions can be recorded by a device called a pen register. It allows the employer to see a list of phone numbers dialed by your extension and the length of each call.
  • Specific workplace rights
    • The employer may monitor networks and terminals since they own the equipment.
    • Electronic e-mail is owned by the district and may be reviewed by it. This applies to incoming and outgoing mail.
    • Any message posted to list serves and user groups are public records.
    • A company may change its mind on monitoring e-mail without prior notification. (Symth vs. Pillsbury).
  • Specific workplace rights
    • There must be an “unreasonable intrusion” into a private place.
    • The right to privacy turns on whether the employee had a reasonable expectation of privacy with regard to the area searched.
    • Private” messages are not considered private in the workplace unless there is a policy that states it.
  • Specific workplace rights
    • Fourth amendment does not apply to searches by private parties
    • Courts generally have sided with employers who monitor or discipline employees over Internet use in the office.
  • “On My Own Time” Issues
    • Courts may apply similar standards outside the office if there is a work connection
    • Home email may be monitored if it is on a school account.
    • Internet restrictions apply at home on laptops unless otherwise stated.
  • Who’s watching
    • 75% of all companies use some form of surveillance.
    • 38% of major U.S. companies check e-mail.
    • 54% monitor internet use.
  • And what’s happening
    • 17% have fired employees for misusing the internet.
    • 26% have handed out warnings.
    • 20% have issued informal warnings.
    • Xerox
      • Fired 40 workers for inappropriate use of Internet.
    • New York Times
      • Fired 23 workers for sending potentially offensive email.
    • Arlington Texas
      • Councilwoman was forced to disclose city-related messages on her personal account because she had listed it on her business card.
  • Do you tell?
    • Determined by type of monitoring.
    • Preventive
      • Filters that block access to certain web sites and/or free e-mail services.
    • Proactive
      • General record of websites visited.
    • Aggressive
      • Allows employers to record pictures of screen activity.
      • Allows employers to record keystrokes to find out where employees have been
  • Do you tell?
    • Basic issues
      • Morale
        • What will happen if you don’t and it gets out?
        • Where is the trust level?
      • Security
        • Will it drive offenders underground?
        • Will it make a real difference?
  • Monitoring – The Reality
    • Monitoring exists for problem situations
      • Occasional use vs. excessive use
      • Personal mail vs. anti-mail.
    • Issues arise involving:
      • Lack of proper notification.
      • Misunderstanding of “private”.
      • Lack of awareness of seriousness of issue.l
  • Steps to Follow
    • Discuss privacy issues with all staff.
    • Insure staff knows that all electronic correspondence is subject to a FOI request.
    • Provide training session to demonstrate capability of general monitoring.
    • Have in place updated “working” AUP.
    • Include standards for all technology not just the Internet.
    • Handle monitoring notification separately from AUP.
  • Sample Employee Notice: E-Mail Use The ABC School District E-mail system is district property, and it is a form of official business communication. Take care to use proper grammar and etiquette in all E-mail messages. Please do not consider E-mail to be private communication and do not use E-mail for confidential communication. To ensure that the system is operating properly, the district may, from time to time, monitor and access E-mail messages. Employees must not access or read communication directed to others.
  • Sample Employee Notice: Internet Use ABC School District maintains a home page on the Internet. Certain employees are authorized to access the Internet from designated computer terminals. Internet use is for educational purposes only. Do not send or receive confidential information over the Internet. Do not send, receive, or display any improper information or sexually oriented information. Please recognize that Internet communications are not private and that the use of computer terminals is subject to monitoring by the administration
  • Sources
    • Smith, Robert Ellis. Ben Franklin’s web site. 2000. ISBN 0-930072-14-6.
    • Privacy and human rights 2000. Www.Privacyinternational.Org
    • Email privacy. www.eff.org
    • Cyber Liberties. Beeson, Ann. 11/17/00. www.aclu.org/issues/cyber/priv/privpap.html.
  • Sources
    • “ Employee Lawsuits: Limited Right of Employee Privacy”. www.uslaw.com
    • Employee Lawsuits: Privacy in the Computer Age.” www.uslaw.com .
    • “ Should Big Brother be Watching?” Brooks, Susan. Technology and Learning, November 2000. P. 22.
    • “ The Privacy Practices of Web Browser Extensions” Martin, Smith, Brittain, Fetch, Wu. Privacy Foundation.
  • Sources
    • Employee Monitoring: Is there privacy in the workplace? www.privacyrights.org .
    • EPIC Online Guide to Privacy Resources. www.epic.org .
    • Hubbart, William S. The New Battle Over Workplace Privacy. Amacon Press, 1998.
    • Hawke, Constance S. Computers and Internet Use on Campuse. Jossey Bass, 2001.
    • [email_address]