The federal and state legal systems overwhelmingly agree with the employer with
regard to data collection laws. According to the Harvard Law Review, "Employees
currently have few legal tools available to combat electronic monitoring. Policy
makers have left the issue to the free market, which is only partially encumbered
by unions."(8) Employers, because of this lack of
legal constraints, find themselves free to monitor almost any of an employee's
work. All of the employers interviewed by the Office of Technology of Assessment
believed that they had a legal right to search employee diskettes if they had
cause to believe that that inappropriate material, including personal material or
unauthorized company information, was being stored there. Furthermore, the
Federal Government has already initiated such audits to ensure that government
computers are used only for official business and to maintain security over
confidential information (3).
The legal ambiguity of privacy laws under private companies and the precedents
set by government organizations has led employers to seize almost absolute
computer monitoring rights. A US survey found that more than 20 percent of 300
diverse businesses surveyed "engaged in searches of employee computer files,
voice mail, electronic mail or other networking communications."(12) According to the head of privacy issues for the
National Association of Manufacturers, "the employer certainly has a right to any
kind of data generated by an employee on an employer's time and on an employer's
equipment."(10:287)
Employers also have a substantial amount of monitoring rights in spheres
generally considered private, such as phone conversations and oral conversations.
Federal and most state wiretap statutes allow monitoring of the number of times
an employee uses the phone, the length of the conversation, and the numbers that
are called. The contents of the phone conversation can also be monitored if all
the following considerations are met (5):
- The monitoring is for a reasonable business purpose.
- Personal calls
are not monitored beyond the time necessary to determine that the calls are
personal in nature.
- The monitoring uses regular phone equipment (preferably
supplied by the telephone company).
- The scope and manner of monitoring is not
unreasonable.
An employer can legally eavesdrop on an oral conversations if
he/she meets one or more of the following criteria (5): - avoid the use of
any electronic, mechanical, or other device;
- only eavesdrop in situations
where the conversants could not reasonably expect not to be overheard; or
- obtain the consent, express or implied, of one of the parties to the
conversation.
