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(This column was first published in 1995. It has proven to be an accurate prediction of the workplace today. The world has caught up to the realization that computerized communication raises privacy concerns. For more recent developments see the E-Commerce News section of this site.)
The Ethics of Privacy - Computer Version
Marilyn: Betty, I understand you and Bill are having problems again. That man really doesn't appreciate you. If you're going to stay married to him, you should at least get some serious counseling. Betty: What do you know about my marriage? Marilyn: I know those bruises on your arm did not come from working in the garden like you told me. As your manager and friend, I worry about you, and your ability to concentrate on your work. Betty: How do you know about that?! Marilyn: Well, you told Sue. Betty: Sue told you. That bitch! She needs to keep her mouth shut. Marilyn: Sue didn't tell me anything. It was all in the e-mail you sent her Betty: You read my private e-mail! Marilyn: What makes you think it's private? You get paid for eight hours a day, even though you only work seven after coffee breaks. If you can't get your gossiping done in person in the kitchen, that's not my problem. When you're at your desk you should be working, not using the company's computer for personal chatting.
Alas, another way lives are affected by this complex modern world. For years people have labeled envelopes personal and confidential in the hope, usually honored, that they would be left alone. But now we have e-mail, how do we handle that? For years we did our letters on typewriters. Once done there was not a sign of their having been written, save the original paper and perhaps a carbon copy. Now we type on computers and save things to disk. Even when we don't save, the software does timed backups to protect our work. Then even if we delete, the network administrator has backups on tape.
This last June, I spoke at the annual meeting of the Electronic Messaging Association (EMA). A few years ago several major corporations, aware of the increasing use of computer mail and conferencing, formed this organization to deal with common issues. In addition to purely technical matters, issues such as privacy are hotly discussed. EMA has even published descriptions of various policies companies can adopt.
The reader may be thinking only of employees worried about employer monitoring. Think again! Employers can pay for thoughtless e-mail, too. For example, in a sex discrimination case, still pending as of this writing, a federal judge has ruled that e-mail messages are subject to litigation discovery. In that case the plaintiff's supervisor referred to her as the "Spandex Queen" in an e-mail message to another manager.
Always anxious to dictate ethical standards, our legislatures have been rushing into this new mode of human communication. In 1986 the Electronic Communications Privacy Act became federal law. This amendment to the federal wiretap statutes provided for confidentiality of e-mail systems of "public" providers. Most legal scholars do not think this applies to private corporate computer systems. But what if they are connected to the oh so public Internet? This year Connecticut adopted a new law making it criminal to threaten or harass a person by computer network. A bill recently introduced in the U.S. Senate would require public bulletin board providers to censor "filthy" language, among other things. (I can imagine the jury arguments on that one.)
So just what are the rules of this game? At the moment most courts are holding that an employee's right to computer privacy depends on his company's policy; that is, what expectation was the employee given as to the privacy of e-mail. For this reason, many companies are adopting written policies stating that all material on computers is monitored. Thus there is no expectation of privacy. But if the company monitors all computer material, is the company responsible if someone posts defamatory material on the computer? Prodigy has been hauled into court on that one.
One rule to live by: THERE IS NO SUCH THING AS PRIVATE E-MAIL.
So what are the ethical considerations? For employers or computer personnel who come across sensitive material, it should be treated just like an overheard conversation. If no crime is being plotted against someone, use great discretion in meddling. Marilyn in the example above probably broke no law, but she clearly stuck her nose where it did not need to be. If Betty's job performance had fallen off, it should have been addressed directly.
Usually this column deals in questions without answers, but this time I'll make an exception. There is one ethical rule that works well for electronic communications, pretty much across the board. Bambi's Mom put it well decades ago, "If you can't say anything nice, don't say anything at all."
Copyright 1995 Daniel A. Krohn
First published in DBA Houston September 1995