We can see in 2001 that 77 percent of employers were engaged in monitoring. This may have increased slightly or decreased slightly, but whatever has happened, we know that this is a significant amount of employers--much greater than a majority--that are engaging in monitoring of their employees. We can also see the great rise in monitoring of computers and electronic files in a ten-year period between 1997 and 2007. Finally, we can see some of the newer technologies. In 2007, twelve percent of the reporting employers were monitoring the blogosphere, eight percent were monitoring GPS vehicle tracking, and ten percent were monitoring social networking sites. Probably, some of you are working with social networking policies with the companies that you are involved with. This is a hot topic right now. .... That gives you a picture of what the technology looks like, what the statistics are, and what we are grappling with in terms of the law here. In terms of the law, I am going to talk about the Electronic Communications Privacy Act ("ECPA"). There are also some state statutes that are going to be relevant. There is the tort that we are all very familiar with, dating back to Brandeis' day, of the invasion of privacy, which is invasion of seclusion. And then finally we know that right now there is the hot topic with the Quon case coming down last term with the Fourth Amendment and public-sector employers and employees.
Ariana R. Levinson,
Workplace Privacy and Monitoring: The Quest for Balanced Interests ,
59 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss3/6