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The Recorder: The Battle Over Big Brother

©2002 Law.com
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Kevin Livingston
08-30-2001

Michael Overly knows Big Brother's watching. As Big Brother's attorney, he thinks it's a good idea that you know that, too.

The Los Angeles-based Foley & Lardner employment partner would seem like a good bet to oppose legislation that could potentially put his clients behind bars. But that's not so with a piece of legislation by state Sen. Debra Bowen, D-Redondo Beach, that would make it illegal for companies to track the Internet use of workers unless such activity is clearly stated in a company policy.

With 74 percent of U.S. companies monitoring employee Internet habits and 72 percent spying on employee e-mail messages, some defense attorneys like Overly are now saying that being upfront about Internet snooping may be the best policy.

"This is a reasonable approach to the problem," Overly says. "If you're not doing secret monitoring you don't have a problem."

But others, including some top employment lawyers in Silicon Valley, think that's crazy talk. They see the legislation -- SB 147 -- as unfairly putting employers on the hook for a crime when they are simply monitoring activity on their own equipment.

"Making it a misdemeanor or unlawful to monitor e-mail over a company-owned device doesn't make much sense," says Fred Alvarez, an employment partner with Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif. "It's one thing to make it illegal; it's another to say it's a good idea" to inform workers.

While similar legislation has been vetoed twice before by California Gov. Gray Davis, who feared it would place an undue burden on state businesses, lawyers like Overly say such a law would actually help companies safeguard secrets and avoid workplace lawsuits without encroaching on the privacy rights of workers.

And although few courts in the country have sided with workers on invasion of privacy suits stemming from monitored e-mail, like sexual harassment and other employment issues, before, some see prevention as just good business.

While Bowen's goal is to protect employees, attorneys like Overly say California's courts have yet to define the law in this area. The bill will essentially safeguard companies from potential legal pitfalls, he contends. He says with intellectual property and big-ticket harassment awards at stake, employers have to be able to police their computer systems.

Overly, who's written extensively on the subject, says if there's one flaw in Bowen's bill it's that it doesn't set any guidelines for how a company should go about informing workers of the policy. "It doesn't require what has to be disclosed," he says.

But Lynne Hermle, an employment partner in the Palo Alto office of Orrick, Herrington & Sutcliffe, says the whole idea is flawed because workers do not already have a reasonable expectation of privacy.

"Even when you don't have a reasonable expectation of privacy we're still going to keep an employer from doing it," she says of the legislation.

Hermle, who worked in-house before joining Orrick, says the only way to bring to light the abuses taking place on office equipment is to monitor the activity of workers. She says putting workers on notice doesn't stop them from misusing their computers.

The only way to stop it, she says, is to monitor traffic. "It doesn't mean Big Brother has to look at the e-mail I sent to my mother," she says.

Bowen, whose bill passed the Senate 25-14 and cleared the Assembly Appropriations Committee last week by a vote of 14-7, says her legislation is simply a way to make sure that companies are not intruding on the privacy of workers.

She says although the California Public Utilities Commission required that companies inform workers when telephone calls are tapped, no such law exists for computers.

"People should know that just because they have a computer password, they don't automatically have electronic privacy," Bowen says. "The bill doesn't prevent a company from monitoring what its workers do; it simply makes sure people know they're going to be watched before they log on to their computer."

Some lawyers keeping a close eye on the legislation say it's simply a matter of time before a law addressing the issue makes it on the books.

"It's the hottest employment law issue right now," says Shanti Atkins, a former Littler Mendelson associate who now heads up content development for ELT, the San Francisco-based product and training company that spun off from the firm three years ago.

She says even though no laws have been passed yet at the state or federal level, companies are becoming increasingly aware of the privacy problems that come with the secret monitoring of workplace Internet use.

"Even when things aren't illegal, what creates lawsuits is when people think something unfair has been done to them," she says.

Atkins says although Littler began writing cyber usage policies five years ago, interest has grown significantly in the last year and now trails just behind harassment in the number of human resources policies the firm writes.

And she says concerns about privacy rights -- especially in the workplace -- are just now beginning to catch up with technology.

"I anticipate that the law's going through," she says.

Hermle and other lawyers in Silicon Valley aren't betting on it.

"It's not new," she says. "E-mail abuse in the Valley has been going on for 10 years."