Your Boss, Your Blackberry, and Your Privacy

In a recent case involving employer monitoring of an employee’s communications, a federal judge asked, “What are the legal boundaries of an employee’s privacy in this interconnected, electronic-communication age?” The New York Times’ Room for Debate blog asked six knowledgeable people for their perspectives on privacy law in the workplace.

Timothy B. Lee, scholar at the Cato Institute and Princeton University and writer at Bottom-Up, says monitoring has a high cost to the bottom line, because it reduces employee morale and motivation, and even causes some people to leave:

For their part, employers should recognize that snooping on and micromanaging their employees is counterproductive. The best workers will leave, and the rest will be less willing to put in extra hours when the company needs them most. Treating your workers with respect isn’t just the right thing to do; it’s also good for the bottom line.

Jennifer Stisa Granick and Kurt Opsahl, lawyers with the Electronic Frontier Foundation, point out the impracticality of carrying multiple devices to separate work and personal communication, and the free-speech implications of a policy that restricts personal email use:

Separate phones and computers for work and personal matters are no solution because it’s simpler and more efficient to have just one device. Privacy law should take this reality into account.

Employees must be also able to communicate confidentially about issues the employer may object to, like labor organizing. Indeed, a blanket “no personal use” e-mail policy may well present a problem, if it restricts speech about workplace rights.

Orin Kerr, law professor at George Washington University, says that as smart phones keep improving, employees may not need to use the company network for personal use:

I believe privacy will be affected strongly by the devices like the iPhone. Smart phones are changing everything. They let employees carry the entire Internet with them. As smart phones get better and better, employees will just take their communications off their employers’ networks entirely.

Kashmir Hill, associate editor of Above the Law, says that recent rulings are drawing a clearer line of legal precedent between what an employer can and can’t monitor:

In several recent cases, courts have found that employers don’t have the right to capture e-mails that are sent on work computers but sent from personal accounts, like Yahoo and Gmail. Both practically and legally, that seems like the clearest and easiest line to draw when it comes to employee privacy.

Jonathan Zittrain, law professor at Harvard University and co-founder of the Berkman Center for Internet and Society, says the most important change impacting privacy is the increasing use of Internet-hosted services that take data outside the traditional corporate infrastructure:

The pressing privacy questions have to do with the movement of our sensitive data and applications to the “cloud” (i.e., Internet-hosted computing) — and the ways in which third party vendors can be asked to turn over stuff about us that previously was kept close at hand on our own P.C.s and phones. This is one of the risks as products become services.

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