Reading Comprehension 049


For many of us, George Orwell's "1984" was required reading at some point during our formative years. The picture it painted of a world where privacy was virtually nonexistent and the consequences faced by an individual who dared to oppose the system provoked in many of us an almost instinctive reaction against such a totalitarian exercise of raw authority.

In the 23 years since the actual year 1984 came and went -- happily with few of the horrors envisioned by Mr. Orwell when he finished the novel back in 1948 coming to pass -- we have allowed our privacy to seep away. Instead of ceding control of our private information to a single all-powerful regime, however, we dole it out in bits and pieces to a diffuse network of eager information-gatherers, many if not most of them in the private sector.

Sometimes we trade it willingly for the sake of convenience, as when we disclose a credit card number to a voice over the phone or a Web site over the Internet. Sometimes we reveal ourselves without knowing it, as when the Web sites we visit are tracked and recorded by small programs surreptitiously loaded onto our computers, which report our meanderings to some private master, usually an advertising company. Sometimes we may not think about it very much, as when we hand our drivers' license to a guard in the lobby of an office building who asks for our identification and then scans the license into the building's computers.

Our MetroCards can track the subway stations we use; E-ZPass records the tolls we pay; our cell phone records detail the calls, text messages, and pictures we send and receive. Google or Hotmail or Yahoo hold our e-mails for us and, increasingly, our personal documents, images, spreadsheets, financial records and even (in a recent venture) personal medical records. Surveillance cameras have blossomed in such numbers that, at any moment when out in a public or semi-public space, it is not unreasonable to assume that our grainy image is being recorded by someone.

It should thus come, as no surprise that communications made during work hours may likewise be less than private, even if they relate to purely personal matters. On reflection, this is not unreasonable; communications systems are to today's offices what the assembly line was to Henry Ford: They are the instruments by which the employer makes money. It is far from unreasonable for employers to place restrictions on how those systems can be used by employees. And because so much of what happens in business is recorded by those systems, it is just as reasonable to expect employers to be able to monitor the information exchanged over those systems by company employees.

These cases do not address the situation where an employer institutes a policy that permits some personal use of firm communications systems, but still retains the right to access all systems and to review all communications. They also do not discuss the implications of the waivers that were found to have occurred. Presumably the employees in these cases had some communications with their attorneys away from the office. Should the waiver of the privilege caused by the employees' use of company computer systems result in a waiver of the privilege as to all other communications with counsel on the same topic as well?

They also do not address the situation of voice mail or phone communications. In many companies, telephone systems are now integrated with company computer systems; indeed, many phone conversations are carried over the Internet via so-called "VoIP" systems and no longer use traditional phone lines, at least within the confines of the employer. In those cases, does the broad language of the company's communications policy allow the company to eavesdrop on the employee's conversations or capture and record them on a company server?

The clearest advice for employees wishing to confer with their personal attorneys during business hours would be to make sure that all remote communications take place over communications devices that are controlled by the employee -- a personal cell phone, home computer and home phone lines.

Employers, on the other hand, may want to weigh the relative merits and problems associated with creating a "limited personal privacy exemption" for employees using company communications systems. While such an exemption may come to be considered a valuable benefit, it would have to be carefully crafted to limit liability to the employer.
Perhaps one way might be to provide a "personal Internet use" link on the company system, or "personal use" phone booths and lines, and making it clear to employees how to go about taking advantage of those benefits. The dangers of accommodating such personal privacy, however, may outweigh the benefits.


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