Is it spying if they consent? Does an employer have to give notice before monitoring employee phone and computer use?
Employer Phones : Employers generally can monitor, listen in and record employee phone calls on employer owned phones and phone systems. This includes cell phones, voice mail and text messages provided to employees. For example, in City of Ontario v. Employer Computers- Again, if the employer owns the computers and runs the network, the employer is generally entitled to look at whatever it wants on the system, including emails.
Personal Accounts: It depends on the circumstances—whether the use is at work and on employer equipment. However, employees should be careful about using those accounts and passwords on employer owned equipment, because that information can be stored in backups, is visible to monitoring software and may not really be private at all. Even cases of employees contacting their attorney have gone both ways.
In Stengart v. Loving Care Agency, Inc. New Jersey an employee emailed her lawyer on a company laptop, but through her personal password protected Yahoo account. The court held the emails were protected by the attorney client privilege, but did not really address the privacy issue.
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In Holmes v. Petrovich Development Company LLC California an employee contacted her attorney on a company computer with a company email account. The court found the emails were not protected by either a right of privacy or the attorney client privilege. Using the company account and system waived the privilege, and company policies precluded any expectation of privacy. The employer had issued policies that company machines could only be used for business and gave notice that employees had no rights of privacy in their use of company equipment. In Sitton v. Print Direction, Inc. The employee had been using his personal laptop at work to help his wife run their printing business.
The employee had to pay the employer damages for breach of the duty of loyalty.
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I am not familiar with Georgia law and the duty of loyalty there. But I anticipate there might be a different result in right to work states and states like California, where there is also a Constitutional Right to Privacy. However, certain areas such as locker rooms, changing areas and bathrooms are generally considered private and not subject to monitoring.
Private offices may or may not be protected depending on the circumstances. Some states, such as Connecticut, have specific laws restricting how and for what purpose employers can videotape employees. And state laws on recording conversations apply to video surveillance. However, there are several huge exceptions that basically allow an employer to monitor anything on its own systems.
Computer Hacking Laws. Using employee passwords to sign-in to their personal or social media accounts can violate state and federal computer hacking laws and constitute identity theft. This would include deleting an inappropriate post. In Pietrylo v. In , Google said it would no longer analyse email content for the purposes of advertising, but recent reports suggest that other large firms still do this.
New tech also provides another data source , be it wearables , smart TVs , other in-home smart devices or the smartphone apps that we have come to love.
These can gather data on how you use your smart devices, who you contact, what you watch and for how long, other devices on your home network, or where you go. A massive ecosystem of advertisers and supporting companies is dedicated to tracking your activity across the internet. Perhaps even more alarmingly, this tracking does not stop at online data.
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Tech firms are known to purchase data from financial organisations about user purchases in the real world to supplement their ad offerings. According to some reports , this includes information on income, types of places and restaurants frequented and even how many credit cards are present in their wallets. Opting out of this tracking and onward data sharing is incredibly difficult. Even where you ask to opt out of this data gathering, your request might not be respected. An example is the uproar caused when it was discovered that Google tracks the location of Android users even when the location setting is turned off.
Location data is one of the most useful for advertising and many firms, including Apple, Google and Facebook, track the location of individuals to use as input into their bespoke algorithms.
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To sum up with a simple example, imagine you have just started to think about where to go for your next holiday. You spend the morning visiting travel agents to discuss the latest deals and then visit your favourite restaurant, a popular Caribbean food chain, in the city. Excited about your potential trip, later that night you watch mostly TV shows on the tropics.
The next day, your social media feed contains flight, hotel and tour ads with deals to Barbados. This is a very real illustration of how data on your location, financial purchases, interests, and TV viewing history can be correlated and used to create personalised ads.