3.1.4 Protection of Employees’ Personal Data Processed by Electronic
Means
Another topic which accentuates differences between the European and the United
States’ legal framework on personal data processed by electronic means is the
processing of employees’ personal data.
Employees enjoy few privacy rights in their workplace in the United States.
93 At
the federal level, the Electronic Communications Privacy Act of 1986 (hereinafter
ECPA) is the law that primarily governs the monitoring of electronic communications in the workplace. The ECPA prohibits individuals and companies from
intercepting electronic communications. However, there are two exceptions to this
prohibition that apply to the workplace. One of the exceptions allows interception for
monitoring purposes of employees’ electronic communications by the employer as
long as the interception is done in the “ordinary course of business” and the
employer uses certain limited types of equipment to monitor those communications.
Based on this exception, many employers use electronic mail systems that automatically copy all messages that pass through their system in order to monitor their
employees’ productivity and illegal conduct. The other exception gives employers
the right to track the websites visited by their employees. In addition to the
interception of electronic communications without the consent of the employee,
under the referred exceptions, the employer may monitor other electronic communications, including personal messages of the employee, as long as the employer can
demonstrate the employee’s consent for that monitoring. Some courts have held that
this consent may be a tacit one. It is also important to highlight the fact that the
definition of electronic communications for interception purposes does not include
communications held in electronic storage and that, for that reason, courts have been
granting the possibility to read the private electronic messages of employees stored
in electronic systems.
94
Although the Fourth Amendment to the Constitution of the United States grants
employees who work for public employers a specific right against “unreasonable
government searches”, this right has been interpreted in a very restrictive sense in the
context of personal data processed by electronic means. The Supreme Court of the
United States, in particular, has adopted a very restrictive interpretation of this
constitutional right, by requiring an adequate balance between the protection of
the public employee and the government’s need for an adequate supervision control
and for an efficient operation of the workplace.
95
The monitoring of an employee’s activity on electronic social networks is
prohibited under the Stored Communications Act (hereinafter SCA), although this
prohibition is easily circumvented in the event that the electronic communication
made available in those networks is readily available to the public or is disclosed by
93 See the United States of America’s National Report, Sect. 2.5.
94 See the United States of America’s National Report, Sect. 2.5.
95 See the United States of America’s National Report, Sect. 2.5.1.
20
D. Moura Vicente and S. de Vasconcelos Casimiro
Means
Another topic which accentuates differences between the European and the United
States’ legal framework on personal data processed by electronic means is the
processing of employees’ personal data.
Employees enjoy few privacy rights in their workplace in the United States.
93 At
the federal level, the Electronic Communications Privacy Act of 1986 (hereinafter
ECPA) is the law that primarily governs the monitoring of electronic communications in the workplace. The ECPA prohibits individuals and companies from
intercepting electronic communications. However, there are two exceptions to this
prohibition that apply to the workplace. One of the exceptions allows interception for
monitoring purposes of employees’ electronic communications by the employer as
long as the interception is done in the “ordinary course of business” and the
employer uses certain limited types of equipment to monitor those communications.
Based on this exception, many employers use electronic mail systems that automatically copy all messages that pass through their system in order to monitor their
employees’ productivity and illegal conduct. The other exception gives employers
the right to track the websites visited by their employees. In addition to the
interception of electronic communications without the consent of the employee,
under the referred exceptions, the employer may monitor other electronic communications, including personal messages of the employee, as long as the employer can
demonstrate the employee’s consent for that monitoring. Some courts have held that
this consent may be a tacit one. It is also important to highlight the fact that the
definition of electronic communications for interception purposes does not include
communications held in electronic storage and that, for that reason, courts have been
granting the possibility to read the private electronic messages of employees stored
in electronic systems.
94
Although the Fourth Amendment to the Constitution of the United States grants
employees who work for public employers a specific right against “unreasonable
government searches”, this right has been interpreted in a very restrictive sense in the
context of personal data processed by electronic means. The Supreme Court of the
United States, in particular, has adopted a very restrictive interpretation of this
constitutional right, by requiring an adequate balance between the protection of
the public employee and the government’s need for an adequate supervision control
and for an efficient operation of the workplace.
95
The monitoring of an employee’s activity on electronic social networks is
prohibited under the Stored Communications Act (hereinafter SCA), although this
prohibition is easily circumvented in the event that the electronic communication
made available in those networks is readily available to the public or is disclosed by
93 See the United States of America’s National Report, Sect. 2.5.
94 See the United States of America’s National Report, Sect. 2.5.
95 See the United States of America’s National Report, Sect. 2.5.1.
20
D. Moura Vicente and S. de Vasconcelos Casimiro