Volume 8, Number 2 Spring 1995 AN AFFRONT TO HUMAN DIGNITY: ELECTRONIC MAIL MONITORING IN THE PRIVATE SECTOR WORKPLACE Larry O. Natt Gantt, If "Laws and institutions must go hand in hand with the progress of the human mind .... [A]s new discoveries are made . . . institutions must advance also, and keep pace with the times." INTRODUCTION Although employers have historically monitored their employees, 2 the current widespread development of sophisticated technology is greatly expanding the advanced and highly effective methods by which employers monitor the vorkplace. 3 As these technological advances are frequently designed for or quickly adapted to the demands of the work environment, 4 modem offices are becoming "electronic sweatshops.'5 For instance, the * J.D., Harvard Law School, 1994; A.B., Duke University, 1991. The author is a clerk to .~udge Donald S. Russell, United States Court of Appeals for the Fourth Circuit. 1. 2 TIiEJ~NIAN CYCLOPEDIA: ACOMPREIIENSIVE COLLECTION OFTHE VIEWS OF THOMAS JEFFERSON 726 (John P. Foley ed., 1967). 2. David F. Linowes & Ray C. Spencer, Privacy: The Workplace Issue of the '90s, 23 J. MARSHALL L. REV. 591. 597 (1990) (citing DAVID F. LINOWES, PRIVACY IN AMERICA: IS YOUR PRIVATE LIFE IN "HIE PUBLIC EYE.'? 31 (1989)) (noting an example from the early twentieth century in which the Ford Motor Company utilized a sociological department to monitor the workers' behavior outside the workplace); see also Holly Metz, They've Got TheirEyes on You, STUDENT LAW., Feb. 1994, at 22, 24 (noting that personal observation and recording of worker performance began during industrialization). 3. See, e.g., Robert B. Fitzpatrick, Privacy Issues in the Electronic Monito(ing and Surveillance of Employees, C742 A.L.I.-A.B.A. COURSE STUDY 1165, 1167 (1992), available in WESTLAW, ALI-ABA database lhereinafter Fitzpatrick (1992)]; JenniferL Griffm, The Monitoring of Electronic Mail in the Private Sector Workplace: An Electronic Assault on Employee Privacy Rights, 4 SOFTWARE L.J. 493, 494 (1991); Michael F. Rosenblum, The Expanding Scope of Workplace Security and Employee Privacy Issues, 3 DEPAUL BUS. L.J. 77, 96 (1990); Hannibal F. Heredia, Comment, Is There Privacy in the Workplace?: Guaranteeing a Broader Privacy Pa'ght for Workers Under California Law, 22 Sw. U. L. REV. 307, 330 (1992); Note, Addressing the New Hazards of the High Technology Workplace, 104 HARV. L. REV. 1898, 1898 (1991). 4. Michael W. Droke, Private, Legislative and Judicial Options for Clarification of Employee Rights to the Contents of Their Electronic Mail Systems, 32 SANTA CLARA L. REV. 167, 168 (1992). 5. Catherine Collins, Bill Would Require Notices When Bosses Snoop on Employees, L.A. TIMES, Nov. 3, 1991, at D2 ("'[u]nrestrained surveillance of workers has turned many modem offices into electronic sweatshops") (statement of Sen. Pau ! Simon (D-Ill.)); see Kenneth A. Jenero & Lynne D. Mapes-Riordan, Electronic Monitoring of Employees and346 Harvard Journal of Law & Technology lVol. 8 National Institute for Occupational Safety and Health has estimated that sixty-six percent of all computer operators, or approximately twenty-six million workers, are subject to electronic monitoring by their employers. 6 A more recent 1993 survey of employers found that "[a]bout 22 percent • . . have engaged in searches of employee computer files, voice mail, electronic mail, or other networking communications" and that "[i]n companies with 1000 or more employees, the figure rises to 30 percent. "7 These new monitorh'ag technologies have intensified employee privacy concerns because the instruments abolish the desirable balance of power between employers and employees? The instruments allow employers to invade the personal lives of employees with little or no chance of detection. 9 Furthermore, electronic monitoring allows employers to manipulate, access, and collect information about employees in greater amounts than previously possible.I° Employee privacy concerns have been compounded by the ability of new technology to outpace existing legal sources of privacy protection, as courts seem either unwilling or unable to protect employees from purely electronic invasions of privacy, l~ Some delay in the law is the Elusive "Right to Privacy," 18 EMPLOYEE REL. L.J. 71, 71-72 (1992) (noting that monitoring will steadily increase as it becomes cheaper to perform). 6. Fitzpatrick (1992), supra note 3, at 1169 (citing OFFICE OF TECHNOL(X;Y ASSESSMENT, ELECTRONIC SUPERVISOR: NEW TECHNOLOGY, NEW TENSIONS 124-25 (1987)). Other statistics estimate that every year only six to ten million employees nationwide are monitored by their employers by computer systems that track performance and monitor information. Julie Gannon Shoop, Electronic Monitoring: Is Big Brother at the O~ce?, TRIAL, Jan. 1992, at 13, 13. 7. Charles Piller, Bosses with X-Ray Eyes, MACWORLD, July 1993, at 118, 120 (special report on electronic privacy). From a survey of companies employing a total of one million people, the magazine estimated that 20 million Americans work at places utilizing computer monitoring. The survey also fo,md that only 18 percent of responding companies had a written policy concerning electronic employee monitoring. Id. 8. See Metz, supra note 2, at 28 ("'With new technological advances, the advantages that employers have are becoming almost insurmountable.'") (statement of Robert Ellis Smith, publisher of the Privacy Journal); Piller, supra note 7, at 121; see also Robert B. Fitzpatrick, Privacy Issues in Surveillance, Search, and Monitoring of Employees, C669 A.L.I.-A.B.A. COURSE STUDY 23, 36 (1991), available in WESTLAW, ALI-ABA database [hereinafter Fitzpatrick (1991)] (noting that the stress experienced by monitored employees is due, in part, to direct and contemporaneous monitoring by supposedly precise methods). 9. See Frank J. Cavico, Invasion of Privacy in the Private Employment Sector: Tortious and Ethical Aspects, 30 HOUS. L. REV. 1263, 1265 (1993); Jenero & Mapes- Riordan, supra note 5, at 71. 10. Griffin, supra note 3, at 507. I 1. See Linowes & Spencer, supra note 2, at 598 (citing DAVID