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Electronic Surveillance in the Workplace in Massachusetts

The Fourth Amendment to the U. S. Constitution, Article 14 of the Massachusetts Declaration of Rights, and the Massachusetts Privacy Act, Mass. Gen. Laws ch. 214, § 1B, all provide protection for citizens to be secure against unreasonable searches by government agencies which invade their privacy. Since at least 1987, it has been well established that electronic surveillance of Massachusetts citizens by government agents are searches which would violate constitutionally protected privacy rights, where a person has exhibited an actual expectation of privacy, and when that expectation is one that society recognizes as reasonable.

The protections of the Fourth Amendment and Article 14 against government searches apply to people even when they are in a business or commercial space. "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351-352 (1967).

Massachusetts courts have fully recognized the dangers posed by secret, warrantless governmental electronic surveillance of Massachusetts citizens:

‘[I]t must be plain that electronic surveillance imports a peculiarly severe danger to the liberties of the person....’ [B]ecause the peculiar virtues of these techniques are ones which threaten the privacy of our most cherished possessions, our thoughts and emotions, these techniques are peculiarly intrusive upon that sense of personal security which [Article] 14 commands us to protect." Commonwealth v. Blood, 400 Mass. 61, 69-70 (1987).

Former SJC Chief Justice Liacos issued a strong warning about these dangers 20 years ago: "The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.... The citizens of this Commonwealth should not have to live with the fear that at any given moment they might be the subject of unauthorized covert electronic surveillance by the police." Commonwealth v. Price, 408 Mass. 668, 678-679 (1990)(Liacos, J. dissenting).

The U. S. Supreme Court has expressly stated that public employees have a reasonable expectation of privacy in their workplace, holding in O’Connor v. Ortega, 480 U.S. 709, 717 (1987), that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." In that case and others that followed it, the Court held that a public employee can still expect some privacy in an office even if that office is open to other people or even if that office is shared with several co-workers as ‘[i]t is privacy that is protected by the Fourth Amendment, not solitude.... [T]he secretary working in an office frequently entered by...other employees is protected against unreasonable searches of that office by the government...." Id. at 730 (Scalia, J., concurring in judgment).

Whether or not a public employee has a reasonable expectation of privacy against being electronically monitored depends upon a number of factors, including the nature of the area under surveillance, the extent to which others have access to the area, whether or not the employee exercises dominion or control over the area, the precautions taken to insure privacy, whether or not the employee has notice of the surveillance, the location and point of view of any cameras used, and most importantly, the nature of the electronic intrusion.

The precise extent of a public employee’s expectation of privacy often turns on the nature of an intended intrusion. For example, the courts have held that a person in a glass telephone booth had a legitimate expectation that his phone conversation would not be electronically intercepted, even though he had no legitimate expectation that his activities within the booth would not be observed. However, courts have also pointed out that being watched by a hidden video camera is much more intrusive and that in determining the reasonableness of a person’s expectation of privacy, the degree of intrusion inherent in the continuous nature of video surveillance must be taken into account.

The fact that the public and other employees have some access to an employee’s work space does not make it unreasonable for her to have an expectation of privacy against being secretly videotaped therein. Such an expectation is not defeated merely because a work area is sometimes accessible to others, as privacy does not require solitude. An individual’s expectation of privacy out of public view inside a building does not disappear merely because the door to the building is open.

Unfortunately, private employers are NOT subject to the same restrictions on monitoring and secretly surveilling workers as public employers are. Workers have much less rights to privacy when working for a private company than they do when working for a government agency/public employer as the constitutional protections simply do not apply to private employers. The best protection that workers in a private company can have is to develop a strong union presence in order to have the union fight against such workplace abuses on their behalf.

Additional resources provided by the author

Electronic Privacy Information Center -- http://epic.org/privacy/workplace/
National Workrights Institute -- http://www.workrights.org/issue_electronic.html
Privacy Rights Clearinghouse -- http://www.privacyrights.org/fs/fs7-work.htm

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