FC: Lawsuits are biggest reason for spying on workers, from USN&WR

[Declan McCullagh <declan () well com>]

*********

Date: Tue, 07 Aug 2001 11:48:42 -0400
To: declan () mail well com
From: dana hawkins <dhawkins () usnews com>
Subject: would you be interested in distributing this on politech?

hi declan. thought this might be of interest to politech subscribers...

hope you're doing well. (i'm sweltering in dc!) in this week's magazine, we 
look at the #1 motive for electronic monitoring of workers: lawsuits.
my article spins off a survey to be released today by the american 
management association, in collaboration with U.S. NEWS & WORLD REPORT, and 
the epolicy institute. it found that almost 10% of firms report having 
received a subpoena for employee e-mail, and nearly 1/3 of the largest 
companies say they've been subpoenaed.
we also discuss the views of a minn. judge who's challenging the 
conventional wisdom that businesses own not only the computers, but also 
the personal messages, unfinished drafts, and other thoughts that workers 
type into them.
the ama, as you may recall, issues a report on workplace monitoring each 
spring that gets splashed all over the front pages and the networks. 
earlier this year, the ama asked me to submit questions for a new follow-up 
survey. in return, they allowed usnews to break the story, and are giving 
us full credit as collaborator.
here's the link to "lawsuits spur rise in employee monitoring":
http://www.usnews.com/usnews/issue/010813/work/workplace.htm
(you'll find the actual text below.)

and here's the link to my webpage, with dozens of stories in the areas of 
workplace, financial, internet, and medical privacy: 
http://www.usnews.com/usnews/nycu/tech/teprivacy.htm

as always, please let me know if you want your name removed from this list.

best,
dana

Lawsuits spur rise in
employee monitoring

By Dana Hawkins

In case you haven't heard, your company is probably peeking
at your E-mail, computer files, and Internet surfing log. But
why? Are employers concerned about productivity, worried
about workers spilling company secrets, or are they just plain
nosy? The answer may be all of the above. But the No. 1
reason for monitoring these days is to avoid the hot lights
and high costs of courtroom drama. Companies say they
need protection against lawsuits, and surveillance software
and other tools that allow them to snoop are becoming less
expensive and easier to use.

At the same time, some legal experts are taking a contrarian
view. They don't believe that companies are always entitled to
rummage through workers' E-mails and files for information,
which can be used to fire employees at will.

A survey of 435 major U.S. firms, to be released this week
by the American Management Association, in collaboration
with the ePolicy Institute and U.S.News & World Report,
examines why these companies are monitoring workers. Of
the firms surveyed, almost 10 percent report having received
a subpoena for employee E-mail. Nearly one third of the
largest companies say they've been subpoenaed, and also
report firing employees for sending sexually suggestive or
otherwise inappropriate E-mails. One quarter of the firms
surveyed say they perform key word or phrase searches,
usually looking for sexual or scatologi- cal language.

The motivation is clear: "Almost every workplace lawsuit
today, especially a sexual harassment case, has an E-mail
component," says Nancy Flynn, executive director of the
ePolicy Institute, which develops E-mail and Internet policies
for employers. The survey also found that barely half of firms
require staff to acknowledge, in writing, that they understand
the company's computer-use policy, which is often vague
and buried in an employee handbook.

The rise in monitoring and the resultant firings have
paralleled the increased reliance on technology in the
workplace over recent years. The new Electronic Policies
and Practices Survey is a follow-up to the AMA's annual look
at employee surveillance, released last spring. That report
had found that more than 75 percent of major U.S. firms
record and review their workers' communications­double the
1997 figure. Last June, at least 20 state employees in South
Dakota were fired or disciplined for allegedly burning job
time surfing sports, shopping, and porn sites. An
investigation of the 100 workers who visited the most Web
sites during a three-week period revealed thousands of
inappropriate hits, says a spokesman for the governor's
office.

E-mail as evidence. Employees are asking why they are so
often kept in the dark about when and how their computers
are searched. Some workers fired from the New York
Times's business office and more recently at Computer
Associates International say that although they received
offensive E-mail, they did not send it. Both companies
dispute the claims. Some employees also say they weren't
shown the evidence against them. "We didn't want to bring
pornography into the employee meetings, because it's not
appropriate," says Deborah Coughlin, a spokesperson for
CAI. Giving workers a chance to respond to such
accusations can make a big difference. Officials in South
Dakota say when they discussed the reports with workers,
one was cleared because he successfully argued that he
wasn't even in the office when his computer recorded a
substantial number of visits to questionable Web sites.

James M. Rosenbaum, chief judge of the U.S. District Court
in Minneapolis, is challenging the conventional wisdom that
businesses own not only the computers that employees use
but also the personal messages, unfinished drafts, and other
thoughts that they casually type into them. In a recent essay
published in the Green Bag, a law review, Judge
Rosenbaum proposes that investigations of workers'
computers be handled like other legal searches. Companies
should have probable cause, searches must be limited in
scope, and employees need to be given prior notice and
allowed to be present during the search, he argues. "I'll bet
you all the money in the world I can go into your computer
and find a basis to fire you," says Rosenbaum. "Computers
never forget, which would be terrific if humans were perfect,
but they aren't."

This survey by the
American
Management
Association, in
collaboration with
the ePolicy Institute
and U.S.News &
World Report,
examines why
companies are
monitoring workers.
For the full report,
click here.

The ePolicy
Handbook.
Containes sample
E-mail, Internet, and
computer-use
policies for
companies.

Job loss monitor.
The Privacy
Foundation's
Workplace
Surveillance Project,
keeps tabs on firms
that have fired or
disciplined
employees based on
computer use.

The Green Bag. In
this law review,
James M.
Rosenbaum, chief
judge of the U.S.
District Court in
Minneapolis,
proposes that
investigations of
workers' computers
be handled like other
legal searches.



Dana Hawkins, Senior Editor
U.S. News & World Report
1050 Thomas Jefferson St., NW
Washington, D.C. 20007
(202) 955-2338, dhawkins () usnews com
www.usnews.com/usnews/nycu/tech/teprivacy.htm





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