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The recent discussion on email privacy provoked me into trying to formalize the
employee privacy policy we have here at Digital Research. Currently, there is
nothing in writing concerning any privacy issues. Here are some references I
have found which some of you might find interesting. In addition, I've just
come across some references to Computerworld articles (Jan 14, 1991; Aug 13,
1990) which I will summarize under separate cover. I've divided case
sightings into two groups: US Constitutional law, and California law.
In addition, PLEASE NOTE that I am cross posting this to misc.legal. PLEASE
EDIT YOUR HEADERS when posting follow ups so that the postings are delivered to
appropriate news groups.
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I. U.S. Constitution
"... [S]pecific guarantees in the Bill of Rights have penumbras, formed
by emanations from those guarantees that help give them life and
substance. ... Various guarantees create *zones of privacy*. The right
of association contained in the penumbra of the First Amendment is one
..."
[Griswold v Connecticut, US Supreme Court, 1965]
"The Constitution does not explicitly mention any right of privacy. In
a line of decisions, however, ... the Court has recognized that a
*right of personal privacy*, or a guarantee of certain areas or zones
of privacy, does exist under the Constiution. This right of privacy
... is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy."
{note: discussion on abortsions to appropriate news groups,
please}
[Roe v. Wade, US Supreme Court, 1973]
"Individuals do not lose Fourth Amendment rights merely because they
work or the government instead of a private employer. The operational
reality of the workplace, however, may make *some* employee's
expectations of privacy unreasonable ... Public employees' expectations
of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by
virtue of actual office practices and procedures, or by legitimate
regulation. ... Given the great variety of work environments in the
public sector, the question of whether an employee has a *reasonable
expectation of privacy* must be addressed on a case-by-case basis."
[Majority Opinion, O'Conner v. Ortega, US Supreme
Court, 1987]
"... [T]he reality of work in modern time, whether done by public or
private employees, erveals why a public employee's *expectation of
privacy* in the workplace *should be carefully safeguarded* and not
lightly set aside. It is, unfortunately, all too true that the
workplace has become another home for most working Americans. Many
employees spend the better part of their days and much of their
evenings at work. ... Consequently, an employee's private life must
intersect with the workplace, for example, when the employee takes
advantage of work or lunch breaks to make personal telephone calls, to
attend to personal business, or to receive personal vistors in the
office. As a result, th etidy distuctions ... between the workplace
and professional affairs, on the one hand, and personal possessions and
private activities, on the other, do not exist in reality."
[Dissenting Opinion, O'Conner v. Ortega (above)]
"There are few activities in our society more personal or private than
the passing of urine. most people describe it by euphemisms if they
talk about it at all. It is a function traditionally performed without
public observation; indeed, its performance in public is generally
prohibited by law as well as social custom. ... Because it is clear
that the collection and testion of urine intrudes upon *expectations of
privacy that society has long recognized* as reasonable, ... we agree
that these intrusions must be deemed searches under the Fourth
Amendment. ...
The Fourth Amendment does not proscribe all searches and seizures, but
only those that are unreasonable. ... The expectation of privacy of
(railroad) employees are diminished by reason of their particiption in
an industry that is regularted pervasively to ensure safety, a goal
dependent, in substatial part, on the health oand fitness of employees.
... We conclude, therefore, that the testing procedures pose only
limited threats to the *justifiable expectations of privacy* of covered
employees. By contrast, the government interest in testing ... is
complelling. Employees subject to the tests discharge duties fraught
with such risks of injury to others that even a momentary lapse of
attention can have disastrous consequences."
[Majority Opinion, Skinner v. Railway Labor Executives
Assoc., US Supreme Court, 1989]
"... [T]he majority today joins those shortsighted courst which have
allowed basic consitutional rights to fall prey to momentary
emergencies. ... The majority's acceptance of dragnet blood and urine
testing ensures that the first, and worse, casualty of the war on drugs
will be the precious liberties of our citizens. ... There is no drug
exception to the Constitution, any more than there is a communism
exception or an exception for other real or imagined sources of
domestic unrest. ... The immediate victims of the majority's
constiutional timorousness will be those railroad workers whose bodily
fluids the Government may now forcibly collect and analyze. But
ultimately, totday's decision will reduce the *privacy all citizans
may enjoy*, for, as Justice Holmes understood, principles of law, once
bent, do not snap back easily."
[Justice Marshall's Dissenting Opinion, Skinner v.
Railway Laber Executive's Assoc., (above)]
"Unlike most private citizens or government employees in general,
employees involved in drug interdiction reasonably should expect
effective inquiry into their fitness and probity. Much of the same is
true of employees who are required to carry fireamrs. Because
successful performance of their duties depends uniquely on their
judgment and dexterity, these employees cannot reasonably expect to
keep from the (Customs) Service personal information that bears
directly on their fitness. While reasonable tests designed to elicit
this information doubtless infinge some *privacy expectations*, we do
not believe these expectations outweigh the Government's compelling
interest in safety and in the integrity of our borders."
[Majority Opinion, National Treasury Employees Union v.
Von Raab, US Supreme Court, 1989]
"In my view the Customs Service rules are a kind of immolation of
*privacy and human dignity* in symbolic opposition to drug use. ...
What better way to show that the Government is serious about its 'war
on drugs' than to subject its employees on the front line of that war
to this invasion of their privacy and affont to their dignity? ...
Experience should teach us to be most on our guard to protect liberty
when the Goverment's purposes are beneficent. ... Those who lose
because of lack of understanding that begot the present exercise in
symbolism are not just the Customs Service employees, whose dignity is
thus offended, but all of us -- who suffer a coarsening of our national
manners that ultimately give the Fourth Amendment its content ..."
[Justice Scalia's Dissenting Opinion, National Treasury
Employees Union v. Von Raab (above)]
"The constitutional right of any citizen not to be searched without a
reasonable basis of individual suspicion is basic to our freedome.
Preservaction of this right was crucial to the creation of our form of
government when we revolted from a system that failed to honor it. If
a serious problem arises there is often a temptation to solve it by
relaxing Fourth Amendment protections. Just as a beautiful sand dune
crumbles if continously eroded by ocean waves, so will *this essential,
precious right* become a victim if it is modified at times of stress.
... [T]he requirement compelling all attorneys accepted for employment
int he (Justice) Department's Antitrus Division to submit to a
pre-screening urine druge test in absence of any basis for
individualized suspicion of druge use offends the Fourth Amendment and
is invalid ..."
[Willner v. Thornburgh, US District Court for DC, 1990]
"No matter how carefully tailored, all urinalysis programs implicate
*serious privacy concerns*. ... We readily agree that pre-employment,
reasonable suspicion, post-accident, and post-rehabilitation tests ...
are less intrusive (than random testing) because they are triggered by
the employee's own acto or conduct, or by a definable event. The
absence of individualized suspicion increases the intrusiveness of
testing on an employee's privacy. We conclude, however, that ... the
privacy interest implicated by random testing in the pipeline industry
is outweighed by the goverment's interest in detecting and deterring
drug use."
[IBEW Local 1234 v. Skinner, Ninth Circuit, 1990]
II. California Constitution
"In November 1972, the voters of California specifically amended
article I, section 1 of our state Constitution to include among the
various 'inalienable' rights of 'all people' the *right of 'privacy.'*
Although the general concept of privacy relates, of course, to an
*enormously broad and diverse* field of personal action and belief, the
moving force behind the new constitutional provision was a more focused
privacy concern, relating to the accelerating encroachment on personal
freedom and security caused by increased surveillance and data
collection activity in contemporary society."
[White v. Davis, Cal. Supreme Court, 1975]
"The *breadth of the concept of privacy* ... has been upheld in a
multitude of fact contexts but as yet remains a concept of as yet
'undetermined parameters' albeit in process of almost daily growth. ...
A Person's medical profile is an area of privacy infinitely mor
eintimate, more personal in quality and nature than many areas already
judicially recognized and protected. ... The state of a person's
gastointestinal tract is as much entitled to privacy from unauthorized
public or bureaucratic snooping as is that person's bank account, the
contents of his library or his membership in the NAACP."
[From Division of Medical Quality v. Gherardini, Cal
Court of Appeal, 1979]
"The right of privacy is the right to be left alone. It is a
fundamental and compelling interest. It protects our homes, our
families, our thoughts, our emotions, our expressions, our
personalities, our freedom of communion and our freedom to associate
with the people we choose. This righ tshould be abridged only when
there is a compelling public need. ... If there is a *quintessential
zone of human privacy* it is the mind. Our ability to exclude others
from our mental processes is intrinsic to hte human personality. ... A
polygraph examination is specifically designed to overcome this privacy
by compelling communication of thoughts, sentiments and emotions which
the examinee may have chosen not to communicate."
[Long Beach City Employees Assoc v. City of Long Beach,
Cal Supreme Court, 1986]
"The question of drug testing obviously implicates *important personal
rights.* To the best of our knowledge, however, no court has held that
the right to be free from drug testing is one that cannot be negotiated
away..."
[Utility Workers Local 246 v. Souther California Edison
Co., Ninth Circuit, 1988]
"Common experience with the increasing use of computers in contemporary
society confirms that (article I, section 1) was needed and intended
to *safeguard individuals' privacy* from intrusion by both private and
governmental action. That common experience makes it only too evident
that personal privacy is threatened by the information-gathering
capabilities and activities not just of the government, but of private
business as well. If the right of privacy is to exist as more than a
memory or a dream, the power of both public and private insitutions to
collect and preserve data about individual citizens must be subject to
constiutional control. ...
The general concept of privacy can be viewed as encompassing a broad
range of peronal action and belief. However, that right, much as any
other constiutional right, is not absolute. A court must engage in a
balancing of interests rather than a deduction from principle to
determine its boundaries. ... Stated another way, a court should not
play the trump card of unconstutionality to protect absolutely every
assertion of individual privacy."
[Wilkinson v. Times Mirror Corp., Cal Court of Appeal,
1989]
"While an employee sacrifices some privacy rights when he enters the
workplace, the employee's privacy expecations must be balanced agains
the employer's interests. ... The *right of privacy* is unquestionably
*a fundamental interest of our society*. ... We think that thtere is a
public policy concern in an individual's right to privacy. ... While
rights are won and lost by the individual actions of people, the
assertion of the right establishes it and benefits all Californians in
the same way that an assertion of free speech right benefits all of
us."
[Semore v. Pool, Cal Court of Appeal, 1990]
"... California accords *privacy* the constitutional status of *an
inalienable right*, on a par with defending life and possessing
property. ... The constitutional right to privacy does not prohibit
all incursion into individual privacy, but provides that any such
intervention must be justified by a compelling interest."
[Luck v. Souther Pacific Transportation Co., Cal Court
of Appeal, 1990]
"(Plaintiff) contends that the California right to privacy is not
negotiable and cannot be affected by a collective bargaining agreement.
We have expressly declined to construe *California's privacy guarantee*
as a non-waiveable right. ... The right to privacy under California
law is based in major part upon the parties' reasonable expecations and
these, of necessity, involve the working conditions agreed upon in the
collective baraining agreement."
[Stikes v. Chevron USA, Inc., Ninth Circuit, 1990]
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