Hard drives raise hard issues

There are no legal statutes preventing an employer from taking a grand tour through any employee's computer hard drive without as much as a minute's warning.

James M. Rosenbaum thinks that's a problem.

Rosenbaum, chief judge of the U.S. District Court for the district of Minnesota in Minneapolis, cites as an example a 1999 incident at The New York Times in which more than 20 employees were fired after a search of their computers uncovered obscene material. Rosenbaum thinks such power to search computers and summarily fire workers is the first step down the slippery slope of eroding the Constitution. In his article "In Defense of the Hard Drive," published in the winter 2001 issue of the offbeat law journal The Green Bag (www.greenbag.org), Rosenbaum argues that this kind of unfettered power may open the way to violating the Fourth Amendment's protection against unreasonable search and seizure. "The Constitution protects individuals against actions by the government," he writes. "But it embodies a higher principle: It expresses the concept that an individual retains a certain sphere of privacy that is inviolate." Conducting a carte blanche search of an employee's computer without fair warning endangers that privacy sphere, Rosenbaum says.

The judge notes that an employee's right to privacy is accepted in other workplace situations. "Searching a computer without warning is tantamount to a company saying, 'Here's a cell phone; since we pay for it, we can listen to your phone calls.'" A different standard applies to computers, Rosenbaum surmises, because they provide a convenient, one-stop search target. Plus, the potential for employees to use them to disseminate offensive material and create a hostile work environment lends a sense of legitimacy to wholesale hard drive searches.

To protect the interests of companies and employees, Rosenbaum suggests a "cyber time-out." Under his proposal, employers would give employees advance notice of a search and would indicate which files are targeted and why. During the time-out, an employee could seek legal advice or try to remedy the situation. When the search is conducted, files not indicated by employers in advance are off-limits.

Rosenbaum contends that his proposal would benefit both sides. Employees would go to work knowing that some portion of their privacy is protected. And employers would have the means to preserve evidence if they suspected an employee of criminal activity. (Contacted after the events of Sept. 11, Rosenbaum didn't change his opinion that the cyber time-out would provide companies or law enforcement agencies with the necessary means to preserve evidence.) "There are a whole bunch of new issues presenting themselves into our work life and society," Rosenbaum says about technology. "We really have to look at how we deal with them."

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