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V o l u m e 8 N u m b e r 2 S p r i n g 1995 AN AFFRONT TO HUMAN DIGNITY ELECTRONIC MAIL MONITORING IN THE PRIVATE SECTOR WORKPLACE Larry O Natt Gantt If L a w s a n d i n s t i t u t i o n s m u s t go h a n d in h a n d w i t h the p r o g r e s s o f the h u m a n mind A s new discoveries are m a d e institutions m u s t a d v a n c e also a n d keep pace w i t h the t i m e s INTRODUCTION A l t h o u g h employers have historically m o n i t o r e d t h e i r e m p l o y e e s 2 the c u r r e n t w i d e s p r e a d d e v e l o p m e n t o f sophisticated t e c h n o l o g y is greatly expanding the a d v a n c e d and highly effective methods by w h i c h e m p l o y e r s m o n i t o r the v o r k p l a c e 3 As these t e c h n o l o g i c a l a d v a n c e s are frequently designed for o r quickly adapted to the d e m a n d s o f the work e n v i r o n m e n t 4 m o d e m offices are b e c o m i n g electronic s w e a t s h o p s 5 F o r 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 T I i E J N I A N CYCLOPEDIA ACOMPREIIENSIVECOLLECTIONOFTHE VIEWS OF THOMASJEFFERSON 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 YOURPRIVATELIFEIN HIE PUBLICEYE 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 STUDENTLAW 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 DEPAULBUS L J 77 96 1990 Hannibal F Heredia Comment Is There Privacy in the Workplace Guaranteeing a Broader Privacy Pa ghtfor 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 SANTACLARA 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 and 346 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 EMPLOYEEREL 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 COURSESTUDY23 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 MapesRiordan supra note 5 at 71 10 Griffin supra note 3 at 507 I 1 See Linowes Spencer supra note 2 at 598 citing DAVID H FLAHERTY PP OTECTING PRIVACYIN SURVEILLANCESOCIETIES4 1989 Steven B Winters …

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