Privacy Issues in the Workplace

recorded “several hundred telephone conversations” that the employee had with his wife and children and that the taped conversations involved “confidential communications, including private family matters.” McVeigh v. Cohen The employee in this case was able to successfully argue that his employer had unlawfully monitored his Internet access. 455 Timothy McVeigh, who bears no relation to the Oklahoma City bombing criminal, is a naval officer who sought an injunction to prohibit the Navy from discharging him based on his sexual orientation. The Navy began investigating McVeigh’s sexual orientation when a civilian forwarded an e-mail message from McVeigh, sent to her through the America Online Service (AOL), which provided some evidence that McVeigh was homosexual. The Navy then contacted AOL and sought further information about McVeigh in order to determine his sexual orientation. The court held that the Navy’s investigation of McVeigh was illegal under the ECPA since the ECPA only allows the government to obtain information from an online service provider if it (a) obtains a search warrant or (b) if it gives prior notice to the online subscriber and then issues a subpoena or receives a court order authorizing disclosure of the information in question. Accordingly, the court suppressed the evidence since it found that the Navy had unlawfully obtained the information

E. A PPLICABLE C ALIFORNIA L AW California employees claiming that the employer breached his/her privacy rights in monitoring his/her electronic communications may potentially assert: (1) violations of Article I, Section 1 of the California Constitution which specifically protects privacy, (2) intrusion into seclusion under California Civil Code section 1708.8, and/or (3) the tort of invasion of privacy. Additionally, California also has two primary bodies of statutory law that specifically govern employer monitoring of electronic communications. The first is California Penal Code section 502, which was enacted to address the proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data. 456 Section 502 protects computer systems, data, the privacy of individuals and “the well-being of financial institutions, business concerns, governmental agencies, and others.” It prohibits, in pertinent part, the unauthorized use, copying, damage, interference, and access to lawfully created computer data and computer systems from an internal or external computer or network. The statute provides both criminal and civil remedies. Section 502 explicitly excludes individuals who access their employer’s computer systems or data when acting within the scope of their lawful employment. However, the statute does not include similar language protecting the employer from liability. Because the statute only applies to “unauthorized” conduct, the employer may avoid liability under Section 502 by obtaining the employee’s written acknowledgement and consent to employer monitoring.

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