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EMAILPRI.TXT
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1994-07-17
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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.
====
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) De