Losing The Expectation Of Privacy Bit By Bit, Byte By Byte

Previously published in THE BOTTOM LINE, October, 2011

For a generation that has become exceedingly facile with electronic gadgetry and desensitized to the massive amounts of data this gadgetry produces, it perhaps comes as no surprise that video surveillance and on-line monitoring by employers of present and potential employees' electronic profiles and fingerprints have become the norm.

Billions of emails are sent and received every day. Facebook has over 750 million active users, Twitter more than 75 million users, and YouTube boasts more than 24 hours of uploads every minute, every day, with over 2 billion viewers daily. Closed circuit digital video cameras are commonplace, from office security cameras to ATMs. All of this data can be available for review and analysis by friend or foe, including current and potential employers.

Social Media

Law firms now routinely vet their recruits through the Internet—not just before a formal offer is given, but before even taking an interview. Social media sites provide firms with the kind of information about candidates that was simply unavailable from any source just a few years ago. A firm can now easily get a glimpse of a candidate's off-duty persona to help determine if there will be a good fit. For example, an Internet-chatty candidate may say some nasty things about his or her former firm that would never appear on a resume; perhaps express an ambivalence about the field of law; show an unhealthy appetite for engaging in high risk, dangerous activities; or flaunt an illicit, drug-friendly lifestyle. In short, the Internet may reveal a person who is far different than the well-dressed, firm-handshaking, smiling face that's sitting in the lobby waiting for his or her interview. Absent the use of this Internet vetting process for the purpose of unlawful discrimination, at present, law firms are free to make such Internet investigations without any legal repercussions. Unlike potential employers, current employers have always kept an eye on their employees, and rightly so, because employers suffer the cost of such behaviors as employee theft and various kinds of employee mishaps and indiscretions. Although social media provides current employers with that same window into their employees' lives—a window voluntarily opened by employees when they post things on a social media site—the new age of electronics offers current employers even more insight. Current employers have access to their employees' electronic cache. It is rare to find any lawyer without a firm-issued smartphone and computer. Usually the firm also assigns an email address and provides the Internet access. These give access to information and activities that are not volunteered by the employee. For example, an electronic file scan may catch an employee receiving and sending sexually explicit emails, creating a sexually hostile work environment, or disclosing privileged (and juicy) client communications via email to third party friends and family. But there is a big difference between looking at something an employee voluntarily makes public and...