Electronic Monitoring

The most important technology of an age is not always the most obvious one (Lienhard, 2001). The surveillance of human activity is likely as old as humanity itself. As evidenced by the accounts of Thucydides (431 B.C.E./1954) and Tacitus (109/1956), the decision to monitor has long been a significant component of military and political action. Smith (2000) describes observation as an integral feature of Puritan life in the American colonies. Significantly, in the country of its heritage, the question of state surveillance had already been at least partially addressed in legal terms. In his work, Policy and Police , Elton (1972) describes the efforts of Thomas Cromwell and other English ministers to prevent religious and political insurrection while attempting to respect laws regarding spying upon fellow citizens . As such circumspection was seldom applied to its offshore possessions, the newly independent nation s supreme governmental document was crafted with an eye toward instituting the securities found in the former homeland.

With the emergence of the American Constitution, the value of individual security from official intrusion was articulated within the Fourth Amendment s ban against unreasonable state-initiated searches and seizures. The protection from official presences in certain aspects of individual life is additionally guaranteed in the First Amendment s right of free expression and association, the Third Amendment s sanction against compelled peacetime use of the home, and the Fifth Amendment s right of silence.

Although possessing, nearly from its start, laws that could prevent many forms of government intrusion, their meaningful application in the United States was anything but swift. It was not, for example, until 1961, in the decision of Mapp v. Ohio that the Supreme Court declared that violations of the Fourth Amendment would result in the exclusion of evidence, and some four years later that the Court in Griswold v. Connecticut (1965) acknowledged that privacy was a subject of the aforementioned combination of amendments , adding to them the Ninth Amendment s retention of unenumerated rights and the Tenth Amendment s reservation of undelegated powers to the states and people.

On a practical level, the reasons for delay are readily apparent. The imposition of surveillance upon a nation that was expanding to the size of a continent was a difficult proposition. Citizens who wished to escape its effects were frequently able to journey toward the frontiers, where governmental presence was at a minimum. Monitoring was also inhibited by the scope and restrictions of the relevant technologies. These factors, combined with 18 ^th and 19 ^th century social circumstances, including communal religious beliefs, concerns of frontier security and survival, as well as community-oriented lifestyles, prevented monitoring from becoming a particularly vital concern in early American law. Significantly, modern legal interest in privacy rose in concert with the introduction of new invasive technologies, though not as applied by the government but as practiced by the citizenry and commerce. One of the first treatises to raise the concern was penned by Warren and Brandeis (1890) in response to such innovations as instantaneous photographs and [the] newspaper enterprise, as well as other numerous mechanical devices (p. 195). The article s assertion of privacy as the right to be left alone soon found support in the law, with New York State enacting in 1903 the first statute allowing for a civil cause of action for its invasion.

The jurisprudence of privacy progressed over the 20 ^th century, assisted by lines of decisions relating to Fourth Amendment criminal procedure and to civil matters involving the invasion of privacy tort. In the latter area, the inferred combinatorial natural of constitutional privacy has not aided in the development of definitive guidelines for the resolution of litigation, particularly in the private sector. Instead, Kopp (1998) observes that state-based causes of action found in the Restatement 1977 (Second) of Torts (Restatement) provide the most useful ground for civil claims. These grounds fall under four categories:

[U]nreasonable intrusion upon the seclusion of another appropriation of the other s name or likeness unreasonable publicity given to the other s private life or publicity that unreasonably places the other in a false light before the public. (Kopp, 1977, §652A)

In cases of monitoring, it is the first of these grounds that is most probably raised. Although the Constitution does not play an explicit role of the Restatement, it remains of crucial importance, as its doctrinal contours provide a definitional superstructure to the very notion of legal privacy. Here, it is important to note that to many scholars, the theoretical genesis of privacy is yoked to ideas concerning property. Smith (2002) notes that the seminal work of Warren and Brandeis (1890) was founded upon the presumption that private property was of fundamental legal importance. McLean (1995) details how wealthy 19 ^th century citizens enjoyed a golden age of privacy, where adequate monetary resources were generally all that was required to maintain seclusion. Consequently, the need for legal intervention came only when the technologies became sufficiently powerful to defeat conventional means. The link between property and privacy raises potential questions about the role of ownership in the determination of claims. It also suggests that privacy is, at some fundamental level, a social and ethical, as well as legal, construct.

This latter submission is enforced by the predominant legal test used to determine whether an invasion of privacy has occurred. In matters of intrusion into seclusion, the nature of the claimed offense must be found to be highly offensive to a reasonable person (Restatement, §652B). As Post (1989) and others have commented, this is essentially a social judgment requiring a determination of the one s place within the community, and this extends not only to the plaintiff, but also to the person or entity accused of precipitating the invasion. The potential for decisions based upon hierarchical position is therefore present in the simplest of intrusion scenarios. It is arguably far greater in cases involving surveillance and monitoring.

From the Roman census to cameras on the Underground, surveillance has concerned power, both as an expression and an enhancement. The particular source can vary from governmental and corporate, to parent and child. Giddens (1985) goes further in suggesting that rather than reflecting or serving power, surveillance independently creates its own power. Perhaps the most famous and debated definition comes from Michel Foucault (1977) who describes surveillance as a contemporary replacement for older, less sophisticated methods of institutional discipline. Indeed, in Jeremy Bentham s (1843) Panopticon , a prison designed to present the impression of constant surveillance was an architectural attempt to impose order without the need of physical punishment . Lyon (1994) emphasizes that although surveillance has often suggested the presence of Orwellian totalitarianism, it is also a key element of modern life, playing crucial roles in such socially positive activities as crime control, social welfare administration, economic growth, and safety programs. He notes that the average, rational citizen often willingly complies with its processes. Notwithstanding its positive aspects, Zureik (2003) describes a disturbing outcome of surveillance as normalization in which the individual is objectified into categories defined by the monitoring system. As with the Panopticon in which prisoners never know for sure when they are being actively watched but conform to the rules for fear that they might, Zureik s characterization suggests that a larger social conformity will be a result of similar techniques applied to whole populations.

The penetration of surveillance activities by digital technologies accentuates these concerns in two separate, but related ways. First, techniques such as face and pattern recognition, mass storage, networking, and data mining profoundly enhance monitoring procedures. Although the selective attention capabilities of the Panopticon model have not yet been transcended, capabilities for selective and constant observation are increasingly becoming possible. Similarly, modern technology has been infused into the common objects and activities of daily life, from the Internet used at work to the sensors present on an automobile. It is thus afforded with the ability not only to be present throughout much of the modern individual s activities, but also to participate in them as well, mediating, recording, and assessing actions on very basic levels. The helpfulness which digital technology contributes to life increases the probability that it will be accepted. Its consequentially ubiquitous presence will also assure that it will be regarded as an accepted state of affairs.

The second concern relates to the authority inherent in digital technology itself. Cassell (1997) lists some of the attributes which produce this characterization, including, fascination and wonder , the lure of the immediate, unambiguous values, the avoidance of uncertainty, the self-perpetuating nature of technology, and the desire for power (p. 64).

Anticipating such current phenomena as virtual reality, Hans Jonas (1979) goes beyond conventional dynamics by noting that the new intelligent artifacts constitute philosophical instruments that mediate as well as interpret reality to an extent in which human judgment is largely absent. This observation is also present in the work of Langdon Winner (1987) who coined the term autonomous technology to describe the belief that somehow, technology has gotten out of control and follows its own course, independent of human direction (p. 13). Whether there are sufficient technical reasons to justify this attitude is, in one sense, irrelevant to the deeper reality that modern decision- makers , as evidenced by legislation, advocacy , and judicial decisions, have, in fact, appeared to accept it as truth.

Before directly considering the relationship of these factors to the academic scenario, a necessarily brief consideration of the somewhat more well developed jurisprudence pertaining to employee monitoring is useful in several respects. First, this area has been an early host to the interplay of the social, ethical, cultural, and rhetorical factors that are outlined above. Second, there is a sufficient number of decided cases that indicate at least preliminary judicial trends. Finally, to some degree, employment-based cases will almost certainly be accorded some perhaps significant precedential value in similar matters arising out of academic settings.

Unfortunately, as true as these statements are, they do not certify the maintenance of consistent or sophisticated judicial analysis. Specifically, as applied to digital issues, there is no exaggeration in the claim that the majority of cases involving employee surveillance is not typified by deep analysis. This may be in some ways contrasted with matters involving conventional situations. In such cases, there are clear indications that courts are prepared to consider a number of social, cultural, and ethical factors before rendering their decision. Thus, in Epps v. St. Mary s Hospital (1986), the court found that the management s monitoring of employee phone calls was allowable since it was conducted during business hours and was directed to conversations related to commercial concerns. Similarly, in Watkins v. L. M. Berry (1983), phone monitoring was upheld when it was conducted pursuant to a written policy and limited to business, as opposed to personal conversations. A similar consideration of norms and practices occurred in O Bryan v. KTIV (1995). In this matter, a search of an unlocked desk occurred within a work environment that was typified by frequent foraging among desks for necessary documents. The court held that, given the well-established practice of the business, there were no grounds to find an invasion. This may be contrasted with Vernars v. Young (1976), where the employer s opening of a letter clearly marked as personal was found to be an invasion, or with K-Mart v. Trotti (1984), where a search based on the suspicion of stolen goods was likewise held to be invasive where it involved an employee locker to which the complainant had, with the employer s permission, affixed a personal lock.

The current jurisprudence of analog surveillance and intrusion may best be summed up in the Supreme Court s comments in O Connor v. Ortega (1987). In this matter, the particular expectations of privacy held by a government-employed physician were found to be reasonable under the Fourth Amendment ^{[ 6]} . The Court did not create a blanket policy, but stated that the societal expectations of privacy in one s place of work must be considered . Nevertheless, harkening back to the relationship between privacy and property theory, it remains clear that societal expectations and norms are powerfully influenced by proprietary factors such as office policy, claims of efficiency, and business goals, leaving one commentator to declare that liberty in the workplace is conceived in terms of the employer s freedom, his freedom from state control in which the employee s freedom from employer control, is at best, derivative (Finkin, 1996,p . 255).

In addressing the prospects of future forms of surveillance, the same author predicts:

[A]s technology and social science advance in tandem to open more effective means of control, the prior and seemingly only slightly less intrusive devices are readily analogized to deny the employee any legal protection against these new methods. (Finkin, 1996,p. 240)

His observation has largely been ratified by the current majority of decisions involving digital technologies. The present review will focus on those cases involving e-mail; however, their reasoning may easily be transferred to a variety of new technology paradigms .

One reason for this portability lies in a general lack of sophisticated judicial analysis within the relevant decisions. The matter of Smyth v. Pillsbury (1996) is illustrative . In this earliest reported matter involving employee e-mail privacy, the plaintiff was terminated from his at-will position after transmitting e-mail messages to his employer via a private computer. The messages were printed and distributed to management who deemed them to be sufficiently abusive and threatening to justify termination. The plaintiff filed suit, alleging wrongful discharge on the basis of invasion of privacy. This submission was bolstered by evidence demonstrating that employees were given management s assurance that their messages would be private. In a brief opinion, which refrained from discussing the firm s practices and protocols, the court held that the messages did not satisfy privacy expectations because they were sent to management via a business-controlled network.

A similar result is found in Fraser v. Nationwide Mutual Insurance Company (2001). The case was precipitated by an employer s retrieval of e- mails stored within the company s server in the pursuit of an investigation of ethical complaints made by the plaintiff-employee against his employer. The communications were made to a professional association, which included employees of the employer s competitors . On the basis of electronic proof that letters had indeed been sent, the employee s relationship with Nationwide was terminated. In finding no legal problems with the search, the court held that although ethically questionable, privacy interests with respect to the course of transmission significantly diminishes once transmission is complete (p. 638).

In United States v. Simons (2000), criminal proceedings were initiated pursuant to the announced monitoring of government employee computers. Upon an employee s conviction for downloading and possession of pornography, which was discovered by the FBI through employer-initiated keyword searches, an appeal based on Fourth Amendment privacy violation was denied . In its decision, the court acknowledged that government employees may possess specific privacy expectations in certain personal and even business-related areas; determinations of such claims must be adjudicated against the governmental interest in efficient and proper operation of the workplace. In Simons, according to the court, the search took place on a computer that was characterized simply as government property. A similar conclusion was made in a federal pornography prosecution commenced by a private employer s request for an FBI investigation. Upholding the government s warrant , authorizing a search of the defendant s office and computer, the court, in United States v. Bailey (2003), stated that no personal expectation of privacy could be found in the employee s computer, based on the presence of a login announcement and other warnings of potential managerial monitoring. These procedures were held to be sufficient to establish clear control of corporate property. An employee cannot claim a justified expectation of privacy in computer files where the employer owns the computer; the employee uses that computer to obtain access to the internet and e-mail through the employer s network. ( United States v. Bailey, 2003,p. 835) In these representative cases, and in contrast with those considering more conventional communication mediums such as the telephone, the courts uniformly avoided consideration of broader issues, including cultural, social, and office practices. Instead, each maintained a common, singular focus upon the bare essentials of technical operation and the fact of proprietary ownership.

Aside from lending credence to the employer-based prejudices asserted by Finkin (1996), the radically narrow mode of judicial inquiry closely tracks the phenomenon of technical fixation described by Cassell (1997). In a recent attempt to advocate the reinsertion of common personal perspectives into the adjudication of technologies, Judge James M. Rosenbaum (2001) of the United States District Court for the District of Minnesota, reflects upon the power of digital mechanisms and offers a radical idea in one area of concern. Its spirit is also applicable to the broader problems posed by the dictates of an advancing digital universe whose movement threatens to eclipse those of the conventionally human:

While recognizing the difficulties inherent in such a suggestion, I recommend a cyber statute of limitations. This limitation recognizes that even the best humans may have somewhat less than heavenly aspect . My solution is imperfect. But so are humans . If perfect recall defines perfection , computers have achieved it. But their operators have not achieved it with them, and humans are unlikely to do so. A legal system which demands human perfection, and which penalizes a momentary failing, cannot operate in the real world.

^{[ 6]} It should be reiterated that the Fourth Amendment consideration is applicable to public but not private employees.