Privacy At Work Essay

Custom Student Mr. Teacher ENG 1001-04 19 February 2017

Privacy At Work

There is no specific right to privacy in the US Constitution although the Fourth Amendment which makes provision for persons to feel safe and secure in their person and property is typically interpreted to give rise to a right to privacy.  In determing the right to privacy in the work place the US courts have determined that an employee’s right to privacy only exist when he or she has a reasonable expectation of privacy.  The manner in which the US courts have approached the expectation of privacy test is illustrated in United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000), United States v. Zeigler (2006)and Nelson v. Salem State College December 8, 2005.

            The United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000) established a two-tier test to the question of workplace privacy.  The first test requires a determination of a reasonable expectation of privacy.  A second test arises if it is found that the employee did in fact have a reasonable expectation of privacy in which case the onus is on him to prove that the invasion complained of was objectively unreasonable.[1]

            In Simons’ case Mark Simons was employed with the Foreign Bureau of Information Services (FBIS) which is attached to the Central Intelligence Agency (CIA).  Simons was provided with an office which he occupied alone and he also had a computer with internet access.  FBIS implemented a policy in which it required all employees to use the internet services for work-related matter only.  FBIS warned its employees that it would conduct periodic audits to ensure strict compliance with the internet policy.  One such audit revealed that there were a number of hits to pornographic websites originating from Simon’s computer.  An investiagtion ensued whereby a search was conducted of Simon’s computer in his office.  Simons was subsequently charged and convicted of several counts of possession of material containing child pornography.[2]

            Simons appealed his conviction arguing that the material collected had been obtained in violation of his right to privacy and contrary to the Fourth Amendment in general since no search warrant had been obtained.  The US District Court of South Carolina considered the arguments and held that in respect of the internet audits, Simons did not have a reasonable expectation of privacy.  The court held that:

 “office practices, procedure, or regulations may reduce legitimate privacy espectations.”[3]

Since FBIS clearly stated that it would be auditing internet use by employees, Simons could not properly claim to have had a reasonble expectation of privacy.[4]

            However, the court went on to rule that Simons did in fact have a reasonble expectation of privacy in respect of an office that he occupied on his own and kept highly classified files.  But in order for the search to constitute an invasion of privacy Simon would have to prove that it was unreasonable.  The question is therefore whether the search of an employee’s workplace “was for the purpose of obtaining ‘evidence of suspected work-related employee misfeasance.’”[5]

The court determined that it was since the employer, FBIS had previously discovered evidence of employee misconduct.[6]  At the end of the day this case determines that once an employer invokes a policy that limits workplace privacy, the employee can expect his privacy to be invaded.  Moreover, if the employer has reasonable grounds to suspect employee misconduct he is at liberty to conduct searches of that employee’s work area.

            In United States v. Zeigler (2006) Zeigler was an employee of Frontline, a private organization.  Like the employers in United States of America v. Mark L. Simons Frontline introduced an internet audit policy in respect of all employees with internet connections.  The computers were subject to a firewall audit that alerted the administration of any and all suspicious activities.  The staff had been fully informed of Frontline’s internet audit policy.  The firewall monitering system alerted Frontline adminstration that Ziegler was visiting unathorized pornographic sites which contained material relating to minors in a “state of undress.”[7]

            As a result of this discovery Frontline reported the activity to the FBI with the result that an investigation commenced and Ziegler was arrested, charged with crimes relating to unlawful access to “child-pornographic websites.” [8]Zeigler filed a number of motions to suppress the evidence retrieved from his workplace computer on the grounds that it violated the Fourth Amendment.  The lower courts dismissed the motions and the US Court of Appeals for the 9th Circuit of Washington D.C. upheld the lower courts’ rulings.[9]

            The 9th Circuit Court of Appeal went a little further than United States of America v. Mark L. Simons which held that a monitering policy was a bar to a reasonable expectation of privacy.  The 9th Circuit Court of Appeal stated that it was unreasonable to expect privacy with respect to the use of computers owned by an employer.  Citing an earlier decision US Supreme Court the 9th Circuit Court of Appeal held that:

“in the ordinary case, a workplace computer simply ‘do[es] not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance.’”[10]

According to the 9th Circuit Court of Appeal, “employer monitorin is largely an assumed practice” and would automatically “defeat any expectation that an employee might nontheless harbor.”[11]

            In Nelson v. Salem State College an employee Gail Nelson, an employee had been videotaped as she changed her clothing in her work area and applied medication to her chest which had been badly sunburned.  In the course of doing so, her activity had been picked up by the employer’s hidden video camera with the result that Nelsoon filed a suit for damages in respect of invasion of privacy.  Like the two cases discussed above the Supreme Judicial Court of Massachussetts had for determination the question of whether in the circumstances Nelson had a reasonable expectation of privacy.[12]

            On the facts of this case, the Judicial Supreme Court ruled that Nelson’s conduct dicated that she did indeed have a reasoanble expectation of privacy.  She had locked the doors and made certain that she was alone.  However, the matter does not end there.  Like the Simons’ case the Massachusetts Judicial Supreme Court ruled that it was necessary to determine whether objectively, Nelson had a reasonable expectation of privacy. The Judicial Supreme Court ruled that it was unreasonable for Nelson to expect privacy in an office that was open to the public, in plain view and could be accessed by any other employee with keys to the office.[13]

Conclusion    

            The three cases discussed above clearly determine that employees report to work for a common purpose.  That common purpose is the conduct of their employer’s business and as such they are subject to monitoring.  Given this characterizaion employees cannot reasonably have an expectation of privacy.  This is particularly so in cases where an employee uses company computers.  In the event they use these computers for purposes unrelated to work they cannot legitimately claim a right to privacy of that use.  Logically the same principles will apply to use of other company property.  Obviously, the overall conclusion is that an employee does not have a reasonable right to privacy in the workplace.

Works Cited

Nelson v. Salem State College (2005) Available online at: http://209.85.165.104/search?q=cache:4iFY0qeuWGcJ:www.epic.org/privacy/nelson/nelson_opinion.pdf+Nelson+v.+Salem+State+College&hl=en&ct=clnk&cd=2&gl=us Retrieved November 25, 2007

 

United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000) Available online at: http://216.109.125.130/search/cache?ei=UTF-8&p=United+States+of+America+v.+Mark+L.+Simons&fr=yfp-t-501&u=pacer.ca4.uscourts.gov/opinion.pdf/994238.P.pdf&w=united+states+state+america+v+mark+marks+l+simons+simon&d=c2F_iPL9P1Gx&icp=1&.intl=us Retrieved November 24, 2007

United States v. Zeigler (2006) Available online at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/60CD1611D2C6D243882571C40000B85A/$file/0530177.pdf?openelement Retrieved November 25, 2007

[1] United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000) Available online at: http://216.109.125.130/search/cache?ei=UTF-8&p=United+States+of+America+v.+Mark+L.+Simons&fr=yfp-t-501&u=pacer.ca4.uscourts.gov/opinion.pdf/994238.P.pdf&w=united+states+state+america+v+mark+marks+l+simons+simon&d=c2F_iPL9P1Gx&icp=1&.intl=us Retrieved November 24, 2007

[2] United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000) Available online at: http://216.109.125.130/search/cache?ei=UTF-8&p=United+States+of+America+v.+Mark+L.+Simons&fr=yfp-t-501&u=pacer.ca4.uscourts.gov/opinion.pdf/994238.P.pdf&w=united+states+state+america+v+mark+marks+l+simons+simon&d=c2F_iPL9P1Gx&icp=1&.intl=us Retrieved November 24, 2007

[3] Ibid

[4] Ibid

[5] Ibid

[6] United States of America v. Mark L. Simons 206 F. 3d 392 (4th Cir., February 28, 2000) Available online at: http://216.109.125.130/search/cache?ei=UTF-8&p=United+States+of+America+v.+Mark+L.+Simons&fr=yfp-t-501&u=pacer.ca4.uscourts.gov/opinion.pdf/994238.P.pdf&w=united+states+state+america+v+mark+marks+l+simons+simon&d=c2F_iPL9P1Gx&icp=1&.intl=us Retrieved November 24, 2007

[7] United States v. Zeigler (2006) Available online at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/60CD1611D2C6D243882571C40000B85A/$file/0530177.pdf?openelement Retrieved November 25, 2007

[8] Ibid

[9] Ibid

[10] United States v. Zeigler (2006) Available online at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/60CD1611D2C6D243882571C40000B85A/$file/0530177.pdf?openelement Retrieved November 25, 2007

[11] Ibid

[12] Nelson v. Salem State College (2005) Available online at: http://209.85.165.104/search?q=cache:4iFY0qeuWGcJ:www.epic.org/privacy/nelson/nelson_opinion.pdf+Nelson+v.+Salem+State+College&hl=en&ct=clnk&cd=2&gl=us Retrieved November 25, 2007

[13] Nelson v. Salem State College (2005) Available online at: http://209.85.165.104/search?q=cache:4iFY0qeuWGcJ:www.epic.org/privacy/nelson/nelson_opinion.pdf+Nelson+v.+Salem+State+College&hl=en&ct=clnk&cd=2&gl=us Retrieved November 25, 2007

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