Public Jobs Private Thoughts

1
Public Jobs Private Thoughts

• Workplace Privacy and Technology
• Caylen Tichenor
• Oconee RESA

2
Defining Privacy

• Privacy is the right to be left alone.
• Louis Brandeis and Samuel Warren Harvard Law
  Review December 1890.

3
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.

4
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

5
Defining Cases

• 10 Stanley vs. Georgia. 1969
• 11 Roe vs. Wade 1973
• 12 OConnor 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

6
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

7
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.

8
9th amendment
3rd amendment
1st amendment
4th amendment
5th amendment
Stanley vs. GA. 1969 Griswold vs. Connecticut
1965 Kyllo vs. Oregon 2001
NAACP vs. Alabama 1958
10th amendment
9
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.

10
So What?

11
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, its 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.

12
OConnor 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.

13
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.

14
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.

15
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.

16
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.
  

17
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.

18
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.

19
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.

20
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.

21
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).

22
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.

23
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.

24
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.

25
Whos watching

• 75 of all companies use some form of
  surveillance.
• 38 of major U.S. companies check e-mail.
• 54 monitor internet use.

26
And whats 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.

27
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

28
Do you tell?

• Basic issues
• Morale
• What will happen if you dont and it gets out?
• Where is the trust level?
• Security
• Will it drive offenders underground?
• Will it make a real difference?

29
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

30
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.

31
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.
32
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
33
Sources

• Smith, Robert Ellis. Ben Franklins web site.
  2000. ISBN 0-930072-14-6.
• Privacy and human rights 2000. Www.Privacyinternat
  ional.Org
• Email privacy. www.eff.org
• Cyber Liberties. Beeson, Ann. 11/17/00.
  www.aclu.org/issues/cyber/priv/privpap.html.

34
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.

35
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.
• ctichenor_at_washington.k12.ga.us