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A new privacy battle is being waged over the use of computers in the workplace. New surveillance software is covertly being installed on corporate computers to capture invisibly and record employee keystrokes as they occur. The software allows electronic data from keystrokes to be recorded even if an employee never saves any of the electronic data on a corporate computer. Employees insist that they have a reasonable expectation of privacy for their “raw thoughts,” but, employers say, any communication composed on corporate computers isn’t private under current law. With ever-increasing concerns about potential liability associated with the use of corporate computers, corporate executives are turning to innovations in technology to monitor employee activity. New software records electronic data associated with the keystrokes as the employee types, including raw text, typos, backspacing, word substitutions, electronic cut-and-paste operations, etc., even if the electronic data are later erased. Originally designed to track employee productivity or the amount of time spent on a project for billing purposes, keystroke-monitoring programs have been improved to include new features that can further invade an employee’s privacy. For example, one program allows a dictionary of trigger words to be defined, and when a series of keystrokes constitutes a trigger word, the software remotely freezes the computer to prevent further inappropriate activity. The potential for employer misuse of such surveillance software is enormous. Employees have expressed fear that employers may monitor keystrokes for trigger words such as “union,” “organize,” “strike,” “alcoholic,” “boss,” “drug rehabilitation” and “HIV,” “psychiatrist,” and also for religious affiliations or sexual orientation. An unscrupulous employer can then use the private information as an underlying reason to terminate inappropriately or illegally employees who do not fit within the belief system of an employer, to save on insurance costs, to get rid of perceived troublemakers, etc. Is it reasonable for an employee to have any expectation of privacy when personal thoughts are typed on a corporate computer, even if their thoughts are never saved? Based on current case law, the answer appears to be no. Courts consistently refuse to expand employee privacy rights for private communications composed on corporate computers. For example, in Smyth v. The Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996), the court stated that by intercepting e-mail communications on a company computer system, “the company is not, as is the case in urinalysis or personal property searches, requiring an employee to disclose any personal information about himself. Moreover, the company’s interest in preventing inappropriate and unprofessional comments or even illegal activities over its e-mail system outweighs any privacy interest the employee may have in those comments.” WHOSE RIGHT PREVAILS? There has also been resistance by state and federal governments to expanding privacy rights for employees using corporate computers. California state Senator Debra Bowen, a Democrat, introduced a bill that would have made it a crime to monitor an employee’s e-mail without warning the employee in advance. The bill passed the Legislature but was vetoed by Governor Gray Davis on the ground that it infringed on employers’ rights and left employers open to unjust lawsuits. He added that an employer has a legitimate need to monitor company property such as e-mail and other information stored on corporate computers. In the fast-paced, workaholic age of the Internet economy, it is becoming increasingly difficult, if not impossible, for employees to separate their professional and personal activities. Innovations in technology continue to blur the distinction between workplace and home. Considering the amount of time that the average employee spends each day using a corporate computer, in and out of the office, it has almost become a certainty that an employee will use corporate computers for personal activities. To avoid a total loss of personal privacy, the courts and national and state legislatures should at least consider a more appropriate balancing of an employee’s right to protect personal privacy and an employer’s right to prevent inappropriate activities on corporate computers. Stephen Lesavich, a partner at Chicago’s McDonnell Bohenen Hulbert & Berghoff, has a Ph.D. in computer science.

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