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Chapter 7

ETHICAL DECISION-MAKING: TECHNOLOGY AND PRIVACY IN THE WORKPLACE

CHAPTER OBJECTIVES• After exploring this chapter, you will be able to:

1. Explain and distinguish the two definitions of privacy.2. Describe the ethical sources of privacy as a fundamental

value.3. Identify the three legal sources of privacy protection.4. Discuss the concept of a “ reasonable expectation of

privacy.”5. Discuss recent development in connection with employee

monitoring.6. Explain the risks involved in a failure to understand the

implications of technology and its use.7. Identify additional ethical challenges posed by technology

use.8. Articulate the manner in which employee monitoring

works.2 MGT604

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CHAPTER OBJECTIVES9. Enumerate the reasons why employers choose to monitor

employees’ work.10. Discuss the ethics of monitoring as it applies to drug

testing.11. Discuss the ethics of monitoring as it applies to

polygraphs, genetic testing, and other forms ofsurveillance.

12. Explain why monitoring might also pose some costs forthe employer and for the employee.

13. Discuss the elements of a monitoring program that mightbalance the interests of the employee and the employer.

14. Explain the interests of an employer in regulating anemployee’s activities outside of work.

15. Discuss the implications of September 11, 2001, forprivacy rights.

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THE RIGHT TO PRIVACY• Privacy is a surprisingly vague and disputed value in

contemporary society.• With the tremendous increase in computer technology in recent

decades, calls for greater protection of privacy rights haveincreased.

• There is widespread confusion concerning the nature, extent,and value of privacy.

• Defining Privacy:

• Two general and connected understandings of privacy:

Privacy as a right to be “left alone” within a personal zone ofsolitude

Privacy as the right to control information about oneself

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THE VALUE OF PRIVACY• Privacy serves to establish the boundary between individuals

and thereby serves to define one’s individuality.• The right to control certain extremely personal decisions and

information helps determine the kind of person we are and theperson we become.

• To the degree that we value the inherent dignity of eachindividual and the right of each person to be treated withrespect, we must recognize that certain personal decisionsand information are rightfully the exclusive domain of theindividual.

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WHAT IS PRIVACY• An individuals privacy is violated or not by a disclosure of

personal information depends upon the relationship betweenthe individual and with the person or persons who come toknow that information.

• Limiting access of personal information to only those with whomone has a personal relationship is one important way topreserve one’s own personal integrity and individuality.

• It is the choice of limitation or control that is the source ofone’s sense of privacy.

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ETHICAL SOURCES OF A RIGHT TO PRIVACY

• The right to privacy is founded in the individual’s fundamental,universal right to autonomy, in our right to make decisionsabout our personal existence without restriction.

• This right is restricted by a social contract in our culture thatprevents us from infringing on someone else’s right to her orhis personal autonomy.

• Reciprocal obligation: For an individual to expect respect forher or his personal autonomy, that individual has a reciprocalobligation to respect the autonomy of others.

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ETHICAL SOURCES OF A RIGHT TO PRIVACY

• Applied to the workplace, the concept of reciprocalobligation implies that, while an employee has anobligation to respect the goals and property of theemployer, the employer has a reciprocal obligation torespect the rights of the employee as well, including theemployee’s right to privacy.

• Ethicists Thomas Donaldson and Thomas Dunfee havedeveloped an approach to ethical analysis that seeks todifferentiate between those values that are fundamentalacross culture and theory hypernorms and those valuesthat are determined within moral free space and that arenot hypernorms.

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ETHICAL SOURCES OF A RIGHT TO PRIVACY

• Donaldson and Dunfee propose that we look to the convergence ofreligious, cultural, and philosophical beliefs around certain coreprinciples as a clue to the identification of hypernorms.

• Donaldson and Dunfee include the following as examples ofhypernorms:

Freedom of speech

The right to personal freedom

The right to physical movement

Informed consent• Individual privacy is at the core of many of these basic minimal

rights and a necessary prerequisite to many of them.• The value of privacy to civilized society is as great as the value of

the various hypernorms to civilized existence• The failure to protect privacy may lead to an inability to protect

personal freedom and autonomy.9 MGT604

PROPERTY RIGHTS• “Property” is an individual’s life and all non-procreative derivatives of

her or his life. Derivatives include thoughts, ideas, and personal information.

• The concept of property rights involves a determination of whomaintains control over tangibles and intangibles, including personalinformation.

• Property rights relating to personal information define actions thatindividuals can take in relation to other individuals regarding theirpersonal information. If one individual has a right to her or his personal information,

someone else has a commensurate duty to observe that right.

• Private property rights depend upon the existence and enforcement ofa set of rules that define:

Who has a right to undertake which activities on their owninitiative.

How the returns from those activities will be allocated.

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LEGAL SOURCES OF A RIGHT TO PRIVACY

• Privacy can be legally protected in three ways:

By the constitution (federal or state)

By federal and/or state statutes

By the common law Common law: Body of law comprised of the decisions

handed down by courts, rather than specified in anyparticular statutes or regulations.

• The Constitution’s Fourth Amendment protection againstan unreasonable search and seizure governs only the publicsector workplace because the Constitution applies only to stateaction. Unless the employer is the government or other

representative of the state, the Constitution generally willnot apply.

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LEGAL SOURCES OF A RIGHT TO PRIVACY

• The Electronic Communications Privacy Act of 1986(ECPA) prohibits the “interception” or unauthorized access ofstored communications

Courts have ruled that “ interception ” applies only tomessages in transit and not to messages that have actuallyreached company computers.

The impact of the EPCA is to punish electronic monitoringonly by third parties and not by employers.

The ECPA allows interception where consent has beengranted.

A firm that secures employee consent to monitoring atthe time of hire is immune from ECPA liability.

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LEGAL SOURCES OF A RIGHT TO PRIVACY

• The “invasion of privacy” claim with which most people arefamiliar is one that developed through case law calledintrusion into seclusion.

• This legal violation occurs when someone intentionallyintrudes on the private affairs of another when the intrusionwould be “highly offensive to a reasonable person.”

• As we begin to live more closely with technology, and theintrusions it allows, we begin to accept more and moreintrusions in our lives as reasonable.

• As privacy invasions become more common, they begin to becloser to what is normal and expected. It may no longer be reasonable to be offended by

intrusions into one ’ s private life that used to beconsidered unacceptable.

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REASONABLE EXPECTATION OF PRIVACY

• Most recent court decisions with regard to monitoringspecifically seem to depend on whether the worker had noticethat the monitoring might occur.

• Since the basis for finding an invasion of privacy is often theemployee’s legitimate and reasonable expectation of privacy, ifan employee has actual notice, then there truly is no realexpectation of privacy.

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TABLE 7.1 - LEGAL STATUS OF EMPLOYEE MONITORING

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GLOBAL APPLICATIONS• Unpredictable regime of privacy protection is all the more

problematic to maintain when one considers the implications ofthe European Union ’ s Directive on Personal DataProtection.

• The directive strives to harmonize all the various means ofprotecting personal data throughout the European Union,where each country originally maintained myriad standards forinformation gathering and protection.

• The directive prohibits E.U. firms from transferring personalinformation to a non-E.U. country unless that country maintains“adequate protections” of its own.

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GLOBAL APPLICATIONS• Because the United States would not qualify as having adequate

protection, the U.S. Department of Commerce negotiated aSafe Harbor exception for firms that maintain a certain levelof protection of information.

• Considering the nature of the legal uncertainty or instabilityconcerning these challenging areas of information gathering,the only source of an answer is ethics.

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EMPLOYEE PRIVACY• If we adopt something like a contractual model of

employment—where the conditions and terms of employmentare subject to the mutual and informed consent of bothparties—then employee consent would become one majorcondition on what information employers can collect.

• Employee privacy is violated whenever:

Employers infringe upon personal decisions that are notrelevant to the employment contract.

Personal information that is not relevant to that contract iscollected, stored, or used without the informed consent ofthe employee.

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TABLE 7.2 - THE SAFE HARBOR EXCEPTION

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LINKING THE VALUE OF PRIVACY TO THE ETHICAL IMPLICATIONS OF TECHNOLOGY

• Consider the implications of new technology on:

Employee and employer expectations regarding the use of time.

The distinction between work use and personal use oftechnology.

The protection of proprietary information, performancemeasurement.

privacy interests; or accessibility issues related to the digitaldivide.

• Technology allows for in-home offices, raising extraordinaryopportunities and challenges, issues of safety, and privacyconcerns.

• Technology allows employers to ask more of each employee.• New technology does not impact our value judgments but instead

simply provides new ways to gather the information on which tobase them.

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LINKING THE VALUE OF PRIVACY TO THE ETHICAL IMPLICATIONS OF TECHNOLOGY

• Firms experience, and find themselves ill prepared for,unanticipated challenges stemming from new technology.

• Do we need “new ethics” for this “new economy?” The same values one held under previous circumstances

should, if they are true and justified, permeate and relate tolater circumstances.

The perspective one brings to each experience is impactedby the understanding and use of new technology and otheradvances.

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INFORMATION AND PRIVACY: GOOGLE’S EXPERIENCE

• A business needs to be able to anticipate the perceptions of its stakeholders inorder to be able to make the most effective decisions for its long-termsustainability.

• New technological advancements are often difficult for the public tounderstand and therefore ripe for challenge.

• The motto at Google is the deontological imperative: “don’t be evil.”• Google believed it was providing a value to society when it created Gmail.

Yet, critics charged that Google violated its own principles when itdeveloped Gmail.

• More detail:• This free email system initially provided a free gigabyte of email storage to

anyone in the world who so desires – 200 times more storage than other freeemail services. It now provides even more than that. However, there was andis one catch: Google scans user email in order to target advertisements basedon the contents. “When people first read about this feature, it soundedalarming, but it isn’t. The ads correlate to the message you’re reading at thetime. We’re not keeping your email and mining it or anything like that. . .You should trust whoever is handling your email”

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WHOM CAN YOU TRUST?• Trust is truly the crux of the issue with the introduction of new

technology.• When consumers rely on technology provided by a business—

from email to internet access and from cell phones to medicallabs—they might easily assume that the business will respecttheir privacy.

• Most average email users do not understand the technologybehind the process.

• One would like to believe that those responsible for thetechnology are, themselves, accountable to the user. That would be the ideal.

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EPIC SAYS: NOT GOOGLE • The Electronic Privacy Information Center, a consumer advocacy

group, considered Google’s marketing plan to be equivalent toa telephone operator who listens in on conversations and thenpitches advertisements where relevant.

• The scanning device violated the two fundamental elements ofprivacy: The right to be left alone. The right to control information about oneself.

• Since the scanning and targeting of ads took place without theuser’s original knowledge or consent, it violated the autonomyin the user’s right to make decisions about her or his “personalexistence.”

• If one’s personal information is respected as property, Googleused individual property without consent.

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GOOGLE’S RESPONSE • Google said that they were not doing anything more than the

other services (who also include advertisements) except that itsadvertisements was more relevant to the user’s interests.

• In fact, their research showed that people actually followedmany of those advertisements and ultimately made purchases.

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STAKEHOLDER ANALYSIS OF GOOGLE’S DECISION

• By failing to fully comprehend and plan for its stakeholders’perceptions of the program, Google not only breached ethicalboundaries but also suffered public backlash.

• Critics argued that Google should have consulted withstakeholders, determined the best way to balance their interests,and then considered these interests as they introduced the newprogram, all of which might have precluded the negative impacton its reputation.

• The lesson learned is that, notwithstanding even reasonablejustification people are simply not comfortable with aninvoluntary loss of control over these personal decisions.

• Google failed to consider the perspectives of its stakeholders, theimpact of its decisions on those stakeholders, and thefundamental values its decision implied.

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RECOMMENDED MORAL REQUIREMENTS

• Economist Antonio Argandona contends that, if new technologyis dependent on and has as its substance information and data,following elements are necessary:

Truthfulness and accuracy

Respect for privacy

Respect for property and safety rights

Accountability

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MANAGING EMPLOYEES THROUGH MONITORING

• One of the most prevalent forms of information gathering in theworkplace, in particular, is monitoring employees’ work, andtechnology has afforded employers enormous abilities to do soeffectively at very low costs.

• The American Management Association has conducted surveysof mid- to large-sized U.S. firms over the past few years thatshow an increasing trend with regard to employee e-mailmonitoring.

• According to one study, about half of companies have engagedin surveillance of employee email.

• Another survey found that only 10% of companies monitoremployee use of Facebook, YouTube, LinkedIn, etc., but 60%of companies said they anticipated doing so by 2015.

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RISKS INVOLVED IN FAILURE TO UNDERSTAND TECHNOLOGY

• Many of the ethical issues that arise in the area of managinginformation are not readily visible.

• When we do not understand technology, we are not ableeffectively to protect our own information because we may notunderstand:

The impact on our autonomy

The control of our information

Our reciprocal obligations

What might be best for our personal existence.

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RISKS INVOLVED IN FAILURE TO UNDERSTAND TECHNOLOGY

• Ethical issues may be compounded by the fact that a knowledge gap exists betweenpeople who do understand the technology and others who are unable to protectthemselves precisely because they do not understand.

• Example:• For example, do you always consider all of the people who might see the emails you

send? Can your employer read you email? Your first response might be "no, itdoesn't have my secret password." However, experts tell us that any system ispenetrable. Employers have been known to randomly read emails in order to ensurethat the system is being used for business purposes. Is this ethical? Does it matterif there is a company policy that systems must only be used for business purposes,or that the employees are given notice that their email will be read?

• How do you know that your boss will not forward your disparaging remarks about acolleague directly to that colleague? It can be done with the touch of a key. Arethere different issues that are raised by that concern as opposed to those that arosewith a traditional written letter? People could always send or show your letter tosomeone. When we mistakenly believe that no one is watching, we may engage inactivities that we would otherwise refrain from doing. For instance, you may believethat hitting the “delete” key does actually delete an email message. However, itdoes not always delete that message from the server so it might have a negativeimpact in a lawsuit or able to be retrieved by your supervisor.

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ETHICAL CHALLENGES POSED BY TECHNOLOGY USE

• Technology allows for access to information that was neverbefore possible.

• Access can take place unintentionally. In doing a routine background check, a supervisor may

unintentionally uncover information of an extremelypersonal nature that may bear absolutely no relevance toone’s work performance.

• This occurs because the information, though previouslyunavailable or too burdensome to uncover, is now freelyavailable from a variety of sources.

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CONTINUOUS ACCESSIBILITY BLURS THE LINES BETWEEN OUR PERSONAL AND PROFESSIONAL LIVES!

• Technology allows us to work from almost anywhere on thisplanet, we are seldom out of the boundaries of our workplace.

• This raises a tough question: should your supervisor try to reachyou just because she has the ability? Our total accessibility creates new expectations, and

therefore conflicts.

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FACELESSNESS MAY BREED CARELESSNESS

• When we do not get to know someone because we do not haveto see that person in order to do our business, we do not takeinto account the impact of our decisions on that person.

• They become merely a name at the other end of an emailcorrespondence, rather than another human being.

• Given the ease and informality of electronic communications, we“say” (write, e-mail, and the like) things to each other that wewould never say to someone’s face Because we do not have to consider the impact of what we

are saying.• We are more careless with our communications because they

are easier to conduct—just hit a button and they are sent.

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WHY DO FIRMS MONITOR TECHNOLOGY USAGE?

• Employers need to manage their workplaces to place workers inappropriate positions.

• To ensure compliance with affirmative action requirements.

• To administer workplace benefits.• Monitoring allows the manager to ensure effective, productive

performance by preventing the loss of productivity toinappropriate technology use.

• Monitoring offers an employer a method by which to protect itsothers resources. Employers use monitoring to protect proprietary information

and to guard against theft, to protect their investment inequipment and bandwidth, and to protect against legalliability.

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MONITORING EMPLOYEES THROUGH DRUG TESTING

• With regard to drug or other substance testing, the employerhas a strong argument in favor of testing based on the law.

• Since the employer is often responsible for legal violations of itsemployees committed in the course of their job, the employer'sinterest in retaining control over every aspect of the workenvironment increases.

• Employees may argue that their drug usage is only relevant if itimpacts their job performance.

• Until it does, the employer should have no basis for testing.

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LEGALITY OF DRUG TESTING • In the seminal legal case on the issue, Skinner v. Railway Labor

Executives’ Ass’n, the Court addressed the question of whethercertain forms of drug and alcohol testing violate the FourthAmendment.

• In Skinner, the defendant justified testing railway workersbased on safety concerns: “to prevent accidents and casualtiesin railroad operations that result from impairment of employeesby alcohol or drugs.”

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LEGALITY OF DRUG TESTING (cont’d) • The court held that “the Government’s interest in regulating

the conduct of railroad employees to ensure safety, like itssupervision of probationers or regulated industries, or itsoperation of a government office, school, or prison, likewisepresents ‘special needs’ beyond normal law enforcement thatmay justify departures from the usual warrant and probable-cause requirements.”

• It was clear to the Court that the governmental interest inensuring the safety of the traveling public and of the employeesthemselves “plainly justifies prohibiting covered employees fromusing alcohol or drugs on duty, or while subject to being calledfor duty.”

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LEGALITY OF DRUG TESTING (cont’d)• The issue then for the Court was whether, absent a warrant or

individualized suspicion, the means by which the defendantmonitored compliance with this prohibition justified the privacyintrusion.

• In reviewing the justification, the Court focused on the fact thatpermission to dispense with warrants is strongest where "theburden of obtaining a warrant is likely to frustrate thegovernmental purpose behind the search."

• The court recognized that “ alcohol and other drugs areeliminated from the bloodstream at a constant rate and bloodand breath samples taken to measure whether these substanceswere in the bloodstream when a triggering event occurred mustbe obtained as soon as possible.”

• The court therefore concluded that the railway’s compellinginterests outweighed privacy concerns since the proposedtesting “ is not an undue infringement on the justifiableexpectations of privacy of covered employees.”

• The railway was allowed to test employees.38 MGT604

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ETHICS OF DRUG TESTING• Where public safety is at risk, there is arguably a compelling

public interest claim from a utilitarian perspective that may besufficiently persuasive to outweigh any one individual’s right toprivacy or right to control information about oneself.

• However, what about jobs in which public safety is not at risk?Is it justifiable to test all employees and job applicants?

• Is the proposed benefit to the employer sufficiently valuable inyour perspective to outweigh the employee ’ s fundamentalinterest in autonomy and privacy?

• Should a utilitarian viewpoint govern or should deontologicalprinciples take priority?

• Should we consider a distributive justice perspective and thefairest result—does distributive justice apply under thesecircumstances?

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OTHER FORMS OF MONITORING • Employers are limited in their collection of information through

other various forms of testing, such as polygraphs or medicaltests.

• Employers are constrained by a business necessity andrelatedness standard or, in the case of polygraphs, by arequirement of reasonable suspicion.

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HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

• With regard to medical information specifically, employer ’ sdecisions are not only governed by the Americans WithDisabilities Act but also restricted by the Health InsurancePortability and Accountability Act (HIPAA).

• HIPAA stipulates that employers cannot use “protected healthinformation ” in making employment decisions without priorconsent.

• Protected health information includes all medical records orother individually identifiable health information.

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THE FUTURE OF TESTING• In recent years polygraph and drug testing, physical and

electronic surveillance, third-party background checks, andpsychological testing have all been used as means to gaininformation about employees.

• Electronic monitoring and surveillance are increasingly beingused in the workplace.

• In future, genetic testing will raise new questions aboutprivacy. Genetic testing and screening, of both employees and

consumers, is another new technology that will offerbusinesses a wealth of information about potentialemployees and customers.

• The Genetic Information Non-Discrimination Act of 2008(GINA) became effective in November 2009 and prohibitsdiscriminatory treatment in employment based on geneticinformation.

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GINA• It defines “genetic information” in a more broad sense.• Under GINA, your genetic information is not merely information

about you, but also your family’s medical history, including anydisease or disorder, or genetic test results of a family member.

• GINA mandates that employers be extremely careful in terms ofhow they gather and manage employee genetic information asthey are subject to similar conditions to the Americans withDisabilities Act.

• GINA does provide for exceptions. An employer can collect genetic information in order to comply

with the Family Medical Leave Act or to monitor the biologicaleffects of toxic substances in the workplace.

The employer may also gather publicly available geneticinformation, from public sources such as newspapers.

Though GINA contains a strict confidentiality provision, anemployer may release genetic information about an employeeunder certain specific circumstances.

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BUSINESS REASONS TO LIMIT MONITORING

• Monitoring may create a suspicious and hostile workplace.• Monitoring may arguably constrain effective performance since

it can cause increased stress and pressure, negatively impactingperformance and having the potential to cause physicaldisorders such as carpal tunnel syndrome.

• Stress might also result from a situation where workers do nothave the opportunity to review and correct misinformation inthe data collected. These elements will lead to an unhappy, disgruntled worker

who perhaps will seek alternative employment but to lowerproductivity and performance that will reap higher costs andfewer returns to the employer.

• Employees claim that monitoring is an inherent invasion ofprivacy in violation of their fundamental human right to privacy.

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BALANCING INTERESTS• It is suggested that due notice should be given to the

employees, that they will be monitored• The opportunity to avoid monitoring in certain situations would

solve the ethical problems.• But such an approach may not solve all the concerns about

monitoring.• Effect of employer monitoring is termed the “Hawthorne Effect”Workers are found to be more productive based on the

psychological stimulus of being singled out, which makesthem feel more important.

• Random, anonymous monitoring may be a better option.• The most effective means to achieve monitoring objectives:

Remaining sensitive to the concerns of employees Striving towards a balance that respects individual dignity while

holding individuals accountable for their particular roles in theorganization.

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TABLE 7.4 - ILO PRINCIPLES FOR PROTECTING WORKERS’ PERSONAL DATA

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REGULATION OF OFF-WORK ACTS • The regulation of an employee’s activities when she or he is

away from work is an interesting issue, particularly in at-willenvironments.

• But, even employers of at-will employees must comply with avariety of statutes in imposing requirements and managingemployees.

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REGULATION OF OFF-WORK ACTS: SMOKING

• Across the nation, there are other less broad protections for off-work acts. A number of states have enacted protections aboutthe consumption or use of legal products off the job, such ascigarettes.

• These statutes originated from the narrower protection forworkers who smoked off-duty.

• Currently, abstention from smoking cannot be a condition ofemployment in at least 29 states and the District of Columbia(and those states provide anti-retaliation provisions foremployers who violate the prohibition).

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REGULATION OF OFF WORK ACTS: WEIGHT ISSUES

• Employers are not prohibited from making employmentdecisions on the basis of weight, as long as they are not inviolation of the American with Disabilities Act (ADA) when theydo so.

• The issue depends on whether the employee ’ s weight isevidence of or results from a disability.

• If so, the employer must explore whether the worker isotherwise qualified for the position.

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REGULATION OF OFF WORK ACTS: WEIGHT ISSUES

• Under the ADA, the individual is considered “ otherwisequalified” if she or he can perform the essential functions of theposition with or without reasonable accommodations.

• If the individual cannot perform the essential functions of theposition, the employer is not subject to liability for reaching anadverse employment decision.

• Employers should be cautious since the ADA also protectsworkers who are not disabled but who are perceived as beingdisabled, a category into which someone might fall based on hisor her weight.

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REGULATION OF OFF WORK ACTS: MARITAL STATUS

• Laws that protect against discrimination based on marital statusexist in just under half of the states.

• Though a worker might be protected based on marital status,they are not necessarily protected against adverse action basedon the identity of the person they married.

• Some companies might have an anti-nepotism policy where anemployer refuses to hire or terminates a worker based on thespouse working at the same firm, or a conflict-of-interest policywhere the employer refuses to hire or terminates a workerwhose spouse works at a competing firm.

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REGULATION OF OFF WORK ACTS: DATING REGULATIONS

• Since about 40%of workers have dated an office colleague,policies and attitudes on workplace dating are especiallysignificant.

• Though only about 13 percent of workplaces have policiesaddressing workplace dating, a New York decision reaffirms theemployer’s right to terminate a worker on the basis of romanticinvolvement.

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REGULATION OF OFF WORK ACTS: POLITICAL INVOLVEMENT

• The majority of states protect against discrimination on thebasis of political involvement, though states vary on the typeand extent of protection.

• Lifestyle discrimination may be unlawful if the imposition of therule treats one protected group differently than another.

• Similarly, the rule may be unlawful if it has a different impact ona protected group than on other groups.

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REGULATION OF OFF WORK ACTS:EMPLOYER DEFENSES

• Most statutes or common law decisions provide for employerdefenses for those rules that: Are reasonably and rationally related to the employment

activities of a particular employee. Constitute a “bona fide occupational requirement,” meaning

a rule that is reasonably related to that particular position. Are necessary to avoid a conflict of interest or the

appearance of conflict of interest.

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REGULATION OF OFF WORK ACTS:EMPLOYER DEFENSES

• The question of monitoring and managing employee onlinecommunications while the employee is off work emerges as anastonishingly challenging area of conflict between employersand employees, and one without much legal guidance,demanding sensitive ethical decision making.

• While employers are legally prevented from asking candidatesabout their religion or prior illegal drug use during a jobinterview, is it ethical for them to seek out that informationthrough online sources when the candidate voluntarily disclosesit with no connection with work?

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PRIVACY RIGHTS SINCE SEPTEMBER 11, 2001

o The events of September 11, 2001 have had major impacts onprivacy within the United States, and with the employmentenvironment in particular.

o The federal government has implemented widespread modificationsto its patchwork structure of privacy protections since the terrorattacks of September 11, 2001.

o Proposals for the expansion of surveillance and informationgathering authority were submitted and, to the chagrin of some civilrights attorneys and advocates, many were enacted.

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USA PATRIOT ACT• The most public and publicized of the modifications was the

adoption and implementation of the Uniting andStrengthening America by Providing Appropriate ToolsRequired to Intercept and Obstruct Terrorism UnitedStates (USA PATRIOT) Act of 2001.

• The USA PATRIOT Act expanded States’ rights with regard toInternet surveillance technology, including workplacesurveillance and amending the Electronic CommunicationsPrivacy Act.

• The Act also grants access to sensitive data with only a courtorder rather than a judicial warrant and imposes or enhancescivil and criminal penalties for knowingly or intentionally aidingterrorists.

• In addition, the new disclosure regime increased the sharing ofpersonal information between government agencies in order toensure the greatest level of protection.

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THE ACT’S IMPACT ON EMPLOYERS’EFFORTS TO MAINTAIN EMPLOYEE PRIVACY

• The Act provides for the following enhanced procedures: Expanded authority to intercept wire, oral, and electronic

communications relating to terrorism and to computer fraudand abuse offenses.

Roving surveillance authority under the Foreign IntelligenceSurveillance Act of 1978 (FISA) to track individuals.

Nationwide seizure of voice-mail messages pursuant towarrants (i.e. without the previously required wiretap order).

Broadens the types of records that law enforcement mayobtain, pursuant to a subpoena, from electroniccommunications service providers.

Permits emergency disclosure of customer electroniccommunications by providers to protect life and limb.

Nationwide service of search warrants for electronicevidence.

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IMPACT OF THE ACT ON BUSINESS• Employers have three choices in terms of their response to a

governmental request for information. They may opt to voluntarily cooperate with law enforcement

by providing confidential employee or customer informationupon request and as part of an ongoing investigation.

They may choose to cooperate by asking for permission toseek employee authorization to release the requestedinformation

They may request to receive a subpoena, search warrant, orFISA order from the federal agency before disclosing anemployee’s confidential information.

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Review Questions:1. Define privacy and discuss the ethical sources of a right

to privacy.2. Discuss the ethical challenges posed by technology use.

Why do firms monitor technology usage?

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