Privacy Abuse and Protection Chapter

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Privacy and Abuse Protection Efforts of Businesses

Facts

Many workforces in most nations all over the world are increasingly becoming global. These workforces cooperate, communicate, and link up in multinationals and global marketplaces via web-based applications across countries and territories. The phenomenon of globalization has removed quite a number of differences amongst peoples and nations both in workplaces and in other areas[footnoteRef:2]. However, some questions have been raised on the origins of workplace privacy. For instance, the U.S. (United States) and the E.U. (European Union) have quite a number of differences with regards to workplace privacy. Such kinds of differences bring about significant challenges for an employer whose workforce is global in nature or who manages human resources using technologies and processes that go beyond borders. [2: Determann and Lothar (2011)]

Employers have accessibility to personal data of their workforce. This data might be insightful and so the workforce might want to avoid disclosing this data[footnoteRef:3]. As a result American employers practice quite a number of workplace-related monitoring activities for an even wider range of legitimate reasons. Overall, the right to privacy in the U.S. is based on the reasonable expectation of privacy; an expectation which is based on reasonable views of an individual or the circumstances specific to that situation. Employees in the U.S. expect minimal protection of their privacy in workplaces. American employers frequently remove all shreds of expectations through cautions or notices informing employees that that they are being monitored via training books, in familiarization tours, on employee login flash-screens, network use policies among others1. However, newer technologies are emerging that can monitor employees and catch them by surprise and challenge employers efforts so that the employees are aware of newer technologies. Such new technologies destroy any little expectations that employees have with regards to their privacy rights being upheld and not being watched by any surveillance technology. Therefore, there is a need to look into privacy rights in workplaces and to find and document ways to prevent violations of these rights via surveillance and other methods. [3: Workplace Privacy]

The degree of workers' workplace privacy rights is based on whether they work in the private or public sector. Since constitutional rights largely work to protect individuals against illegal government actions, such state actions must occur for one to invoke a constitutional right. Thus, since the majority of the American workforce is employed in the private sector, the U.S. constitution, particularly the 4th amendment that deals with privacy protection cannot be invoked in email monitoring cases in the private sector3. The constitutions of eight states offer more protection of rights for public employees compared to the U.S. constitution. However, similar to the U.S. constitution, all of these rights protect only public sector workers and offer little protection for those in the private sector except the constitution of the state of California, whose privacy rights clause extends to private employees too.

Issues

Should businesses carry out surveillance activities on their employees? Should they monitor them? If so, what should be the limits of such monitoring activities? Where should we draw the line? According to the United States Office of Technology Assessment, computerized performance monitoring is the gathering, storage, assessment and reporting of data on the productive activities carried out by employees using computers. The act of monitoring employees is a controversial practice that is increasingly becoming common8. The issue of employee monitoring is a grey area in law8.

The law doctrines in use imply that employee monitoring is legal, yet Businesses must monitor their workers to protect themselves and their employees, while concentrating on giving them ethical treatment. Thus, there is a dilemma. According to Bhatt, many businesses are of the opinion that concentrating on people, techniques, and technologies help them to monitor employees and knowledge management. Such an approach, however, will not enable a company to have a competitive edge. For organizations to perform, they must create workplaces where there is maximum transparency and accountability8.

In the late 1990s, the world led by Western nations particularly the U.S. was moving from the industrial age to the information age. At the beginning of the information age, which was characterized by increase in computer companies and internet access and use, employers and business faced challenges of misuse of internet by employees for which the company would be liable. To circumvent such challenges, Frayer noted that employers started using monitoring tools, which allowed them to clandestinely see, record and note almost everything that workers were doing using their computers. Today more and more workers rely on computers to carry out their responsibilities.

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It was estimated that out of 50 to 75% of employees who use computers at work, about 85% of them have internet access8.

The availability of computer and internet access to employees in different companies and workers having different personalities, knowledge, intentions, and ethics, makes it mandatory for the employers to monitor their employees' online activities. Take this case, for instance, a nurse working with children at a certain hospital, referred to the disabled child she was caring for, as her "little handicapper," she commented on the a newspaper blog about how she was caring for the child, in her port she mentioned identifying information, such as the age of the child and his use of a wheelchair. One of the newspaper's readers read the blog and filed a complaint with the BON (Board of Nursing) arguing that the nurse was violating the child's and his family's privacy laws. Even without taking into account the unethical and insensitive language, the BON could, if they wanted, take disciplinary measures against the nurse for her failure to hold the patient information in confidence2.

The BON however decided that a warning was enough for the nurse[footnoteRef:4], the warning was indeed sufficient and the nurse learnt her lesson about positing such information online. A look at another example where a nurse arrived at work to find a photograph of a patient whose backside was exposed, in her emails. The nurse not knowing the source of the photograph, forwarded it to her workmates, who had not yet seen it, in an effort to find the source. In a few hours, the photograph became a topic of debate among the hospital employees with some of them expressing their disgust and concern while others finding it hilarious. None of the hospital's employees took the initiative to report the matter to the administration. In a few short hours, the hospital's management got the news about the picture making rounds and commenced their own investigations since they thought that the patient's privacy rights had been infringed. It was not long before the town's local media became aware of the incident and the issue gained nationwide coverage. The police interrogated into the matter as to whether the case was of sexual exploitation. Hospital administration then reacted by sending the nurses on an administrative leave and elected to review the hospital's patient protection, dignity and rights2. [4: Spector and Kappel (2012)]

Management also decided to report the matter to the Board of Nurses. The BON then opened a case file into the incident to determine whether any rights including national or local regulations that they had a mandate to enforce, had been violated. Lastly, the patient whose picture was doing rounds was identified and the hospital faced possible legal ramifications. If the nurses had in the first place acted professionally, the situation could not have unfolded as it did2.

While employers and boards of management have handled cases involving malicious misuse of internet services, most of the times the disclosure of confidential information is often not intentional. Depending on the jurisdiction, some management boards and employers have specific legislations that deal with the improper use of social media. In cases where specific laws do not exist, boards may use other related laws to look into cases of2:

Unethical conduct

Unprofessional conduct

Immoral conduct

Disclosure of company secrets

Violation of confidentiality

There can be a couple of implications as well for individuals who violate federal or state laws, including possible criminal prosecution or civil liability. Some of the laws that are related with the issue of workplace privacy include: confidentiality laws in various fields, state privacy laws or legislations related to criminal harassment2. Case law could also result in tort liability, for instance privacy invasion or even libel.

Before the advent of internet, organizations allowed the utilization of radios and telephones for their employees' personal benefit[footnoteRef:5]. The standards that were used when resources such as telephones were being misused resulted in loss of productivity of the employees and were purposefully left unclear. However, in the modern day world, where businesses are increasingly trying to increase the productivity of their employees, more and more businesses are looking towards latest technologies to achieve that objective. Moreover, most of those technologies such as computers, tablets and other computer-based applications require internet connection to operate as communication tools. This creates quite a number of legitimate reasons for organizations to monitor their employees' internet activity….....

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