reasonable one, courts must balance the employee’s legitimate expectation of privacy against the government’s need for supervision, control, and the efficient
operation of the workplace.
120 In addition, government employers may weaken
employees’ expectations of privacy by simply informing employees in advance
that their desks, computers, and lockers may be searched for a legitimate business
purpose.
121
In addition to the ECPA, employees have tried to file claims against employers
using the state level common law protections against invasion of privacy. However,
those causes of action provide employees with only very limited protections against
monitoring. Employees seeking to recover damages using the tort theories of
intrusion upon seclusion and the publication of private facts must demonstrate that
they have a reasonable expectation of privacy in the information which has been
monitored.
122
Some states, notably California and Massachusetts, have enacted privacy rights
legislation.
123 Despite the statute’s name, the Massachusetts Right of Privacy Act,
124
does not create significant new privacy rights for employees.
125 To begin, the
language of the statute addresses individuals in general rather than employees: “A
person shall have a right against unreasonable, substantial or serious interference
with his privacy.”
126 When courts have interpreted the statute in the workplace
context, they have used a balancing test that seeks “to balance the employer’s
legitimate business interest in obtaining and publishing the information against the
substantiality of the intrusion on the employee’s privacy resulting from the
disclosure”.
127
2.5.2 CCTV Cameras
There is no explicit protection in U.S. federal law that protects employees against the
use of CCTV cameras for monitoring purposes unless employees are engaged in
“protected concerted activity” such as union meetings. Section 7 of the National
Labor Relations Act protects workers’ “right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
120 480 U.S. 719–726.
121 “Workplace Privacy”, Epic.Org, Electronic Privacy Information Center. Available online at:
https://www.epic.org/privacy/workplace/.
122 Gray Plant Mooty & the Minnesota Department of Employment and Economic Development, A
Legal Guide to Privacy and Data Security (2017). p. 66. Available online at: https://mn.gov/deed/
assets/legal-guide-to-privacy-and-data-security_tcm1045-133708.pdf.
123 See, e.g., Minn. Stat. §626A.02 Subd. 1.
124 G.L. 214 §1B.
125 Litwin (2006).
126 G.L. 214 §1B.
127 Bratt v. Int’l Bus. Machs. Corp., 392 Mass. 508, 521 (1984).
Data Protection in the United States: U.S. National Report
425
operation of the workplace.
120 In addition, government employers may weaken
employees’ expectations of privacy by simply informing employees in advance
that their desks, computers, and lockers may be searched for a legitimate business
purpose.
121
In addition to the ECPA, employees have tried to file claims against employers
using the state level common law protections against invasion of privacy. However,
those causes of action provide employees with only very limited protections against
monitoring. Employees seeking to recover damages using the tort theories of
intrusion upon seclusion and the publication of private facts must demonstrate that
they have a reasonable expectation of privacy in the information which has been
monitored.
122
Some states, notably California and Massachusetts, have enacted privacy rights
legislation.
123 Despite the statute’s name, the Massachusetts Right of Privacy Act,
124
does not create significant new privacy rights for employees.
125 To begin, the
language of the statute addresses individuals in general rather than employees: “A
person shall have a right against unreasonable, substantial or serious interference
with his privacy.”
126 When courts have interpreted the statute in the workplace
context, they have used a balancing test that seeks “to balance the employer’s
legitimate business interest in obtaining and publishing the information against the
substantiality of the intrusion on the employee’s privacy resulting from the
disclosure”.
127
2.5.2 CCTV Cameras
There is no explicit protection in U.S. federal law that protects employees against the
use of CCTV cameras for monitoring purposes unless employees are engaged in
“protected concerted activity” such as union meetings. Section 7 of the National
Labor Relations Act protects workers’ “right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
120 480 U.S. 719–726.
121 “Workplace Privacy”, Epic.Org, Electronic Privacy Information Center. Available online at:
https://www.epic.org/privacy/workplace/.
122 Gray Plant Mooty & the Minnesota Department of Employment and Economic Development, A
Legal Guide to Privacy and Data Security (2017). p. 66. Available online at: https://mn.gov/deed/
assets/legal-guide-to-privacy-and-data-security_tcm1045-133708.pdf.
123 See, e.g., Minn. Stat. §626A.02 Subd. 1.
124 G.L. 214 §1B.
125 Litwin (2006).
126 G.L. 214 §1B.
127 Bratt v. Int’l Bus. Machs. Corp., 392 Mass. 508, 521 (1984).
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425