Transcript Slide 1

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ELECTRONIC PRIVACY ISSUES IN
THE GOVERNMENT WORKPLACE
Frederick (“Rick”) Joyce
Chair, Communications Practice Group
Venable LLP, Washington, DC
202.344.4653
[email protected]
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Venable LLP
One of The American Lawyer’s top 100 law firms. Venable LLP:
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Practices in all areas of corporate & business law, complex litigation,
intellectual property & government affairs.
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Nearly 600 lawyers serving corporata, institutional, nonprofit & individual
clients throughout the U.S. & around the world.
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Headquartered in Washington DC & offices in Maryland, Virginia, New York &
California.
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Founded more than a century ago, the firm has enjoyed a long history of
steady growth, quality service & sound management.
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Venable, LLP – Telecommunications Practice Area
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Our attorneys represent clients in the telecommunications & e-commerce
industries, ranging from entrepreneurs & emerging high technology firms, to
Fortune 500 companies, large media ownership groups, governmental
entities & trade associations.
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Our attorneys have a special focus on Wireless, Wireline & Internet
broadband services & related legal/regulatory/business issues.
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We represent governmental entities on a variety of communications, privacy,
Homeland Security & other technology matters.
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Communications Issues of Interest to Government Workplace
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Privacy: SPAM, SPIT, SPIM, PHISHING, Pre-Texting - Key issues for employers,
consumers and regulators. We assist clients in crafting appropriate privacy & Internet
policies & proposals that will help promote appropriate conduct.
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Digital Property and Technology: We counsel clients in developing and enacting
legislative and regulatory solutions aimed at preventing piracy & protecting online
intellectual property.
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Wireless/Mobile Radio Services: Rules and regulations, including telemarketing,
record retention and privacy rules enforced by the FTC & the FCC, are constantly
evolving; consequently clients turn to Venable to help navigate this ever-changing
regulatory maze.
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Internet-Related Issues: Venable is actively involved in representing clients and
helping to define the laws that apply to developing Internet-based communications
services such as Voice over the Internet Protocol.
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Homeland Security: Venable authored chapter of home & security laws & practices on
telecommunications & cybersecurity issues in the “Home & Security Deskbook,”
published by LexisNexis Matthew Bender.
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Venable, LLP - Privacy & Data Protection Practice Area
Venable is also well-versed on evolving U.S., Canadian, European, & Asian
regulations & policies governing privacy. Our attorneys have been actively
involved in creation of the following privacy & information security regimes:
 CAN-SPAM Act
 Children's Online Privacy Protection Act
 Communications Assistance for Law
Enforcement Act
 Fair Credit Reporting Act
 Gramm-Leach-Bliley Act Privacy provisions
 Gramm-Leach-Bliley Act 501(b) provisions
on security of customer information
 Telecommunications Act
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Health Insurance Portability & Accountability Act
USA PATRIOT Act
U.S.-EU Safe Harbor Agreement
Bank Secrecy Act & Anti-Money Laundering
Rules
 OFAC compliance
 Federal Right to Financial Privacy Act
 IRS Information Disclosure Rules
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Constitutional Foundation for Electronic Privacy Laws:
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First Amendment (freedom of speech; free press; right of the people
peaceably to assemble & to petition the government for a redress of
grievances)
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Fourth Amendment (The right of the people to be secure in their persons,
houses, papers, & effects against unreasonable searches & seizures)
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Common Law: “Reasonable Expectation of Privacy”
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Other Common Law Privacy Rights (invasion of privacy; trespass; antidefamation laws)
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Katz v. United States (U.S. Supreme Court, 1968)
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Electronic Privacy Laws
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Section 705, Communications Act of 1934 (prohibits interception &
disclosure of wire or wireless communications)
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The Federal Wiretap Act (1968)
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The Privacy Act of 1974 (governs use of computerized databases)
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Electronic Communications Privacy Act (1986)
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Stored Communications Act (1986)
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Communications Assistance for Law Enforcement Act (CALEA)
(1994)
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The Controlling the Assault of Non-Solicited Pornography &
Marketing Act of 2003 (CAN-SPAM)
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Electronic Privacy Laws
(continued)
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State laws – state wiretapping statutes; state privacy laws
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Foreign Intelligence Surveillance Act (FISA)
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USA Patriot Act
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Telecommunications Consumer Protection Act (Do No Call/Faxes)
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Customer Proprietary Network Information (CPNI) (Telecom Act of
1996)
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47 USC 230 (Communications Decency Act) (No provider or user of an
interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.)
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Public/Government Workplace vs. Private Workplace:
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Constitution Only Protects Citizens Against “state” or government action
(“l’etat, c’est toi”;1st & 4th Amendment claims apply to you as an employer)
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Absent a contract or union agreement, most private employees are “at will” &
can be terminated for most any reason absent some law protecting a given
action (ie, whistleblowers). First Amendment gives them the right to speak,
but, they can suffer consequences for their speech.
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Public Employees are Different: Action by Employer of Government Workers
is by Definition “Government Action”; govt job is a “benefit.”
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Public Employees have Right to Speak About Matters of Public Concern
(Pickering v. Board of Education, 391 U.S. 563 (1968) (unless the speech
adversely affects efficiency or effectiveness of operations)
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Electronic Communications Privacy Act of 1986
The statute extended wiretapping protections to cellular telephones,
private networks, & intra-company communications while in transit or in
storage. Although the ECPA was designed to address anticipated
changes in the communications industry, the drafters evidently did not
contemplate the rise of the Internet as a major communications device or
the range of new communications technologies that would rapidly
develop in the ensuing decade.
(There’s no mention of the “Internet” in ECPA, no Blogging, no webhosting, etc.)
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Electronic Communications Privacy Act of 1986 (continued)
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Under current federal law, the interception of the contents of wire, oral, &
electronic communications is regulated by Title III of the Omnibus Crime
Control & Safe Streets Act of 1968, as amended by the Electronic
Communications Privacy Act of 1986, (“the Wiretap Act”).
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The Wiretap Act defines “interception” as “the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the use of
any electronic, mechanical, or other device.”
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“Electronic communication” means “any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic or photooptical
system.”
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The Stored Communications Act
Enacted as Title II to ECPA, the Stored Communications Act (“SCA”) makes
it unlawful for a provider of an electronic communications service to knowingly
divulge the contents of a communication while in electronic storage. It also
prohibits a person or entity providing remote computing services from knowingly
divulging the contents of any communication that is carried or maintained on that
service.
Exemptions: A “service provider” may divulge electronic communications
with the lawful consent of the originator or an addressee or intended recipient of
the communication. Determining which persons or parties are the “addressee” or
“intended recipient” can be difficult, particularly with respect to personal emails
sent to or from employees.
Also, a couple of Federal/Circuit Courts have held that the “Service Provider”
exemption allows employers to retrieve all messages stored on their own
networks. See Fraser v. Nationwide Insurance (2003, 3rd Circ.) & Bohach v. City
of Reno (D. Nev 1996). Best practice would be to let your employees know
this.
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Blogs and Potential Legal Liability of Bloggers:
What is it? A web-based log or diary
Liability issues same as anyone making a publication available to the public, same
freedom of speech & press protections. Legal liability issues include:
 Defamation
 Intellectual Property (Copyright/Trademark)
 Trade Secret
 Right of Publicity
 Publication of Private Facts
 Invasion of Privacy/Trespass
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Blogs and Government Workers:
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Balance between right of public employees to discuss matters of public
concern v. cannot adversely impact employer’s operations or disclose
confidential information (Anderson v. McCotter, 100 F.3rd 723 (10th Cir. 1996)(can’t
fire public employee who speaks out against employer on a matter of public concern
unless the speech adversely affects “efficiency or effectiveness” of operations)
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Use of Government Equipment & Government Time for Personal Blogs
Violates Govt Ethics Regulations
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5CFR 2635.702: Can’t use public office for private gain
5CFR 2635.703: Can’t use nonpublic information to “further private interests”
5CFR 2635.704: Can’t use govt property for “other than authorized purposes”
5 CFR 2635.705: “employee shall use official time in an honest effort to
perform official duties.”
What is Your Office’s Written Policy re: Electronic Communications (are
blogs even addressed?)?
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Top Reasons for Employee Blogger Termination:
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Many offices & employers have “official” blogs (but, see: Blakey v.
Continental Airlines, S. Ct of NJ: employer could be liable for
harassing/defamatory content postings if it has “reason to know” & elect.
bulletin board is “related to the workplace”)
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“Violating Company Policies” (Delta stewardess appearing in uniform; poormouthing employer or employees)
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Divulging trade secrets (US soldier fined & demoted for publishing “classified”
info on his blog)
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Personal blogging on company time
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“Inappropriate” or Libelous Content (“Washingtonienne”; inflammatory or
controversial commentary)
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Electronic Monitoring of Public Employees:
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Government employees enjoy some protection from searches under the
Fourth Amendment.
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O’Connor v. Ortega, the Supreme Court extended Fourth Amendment privacy
protection to public workplace (but, whether an employee has a “reasonable
expectation of privacy” is a case by case analysis).
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“Expectation of privacy” can be affected by office policies & practices.
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Government still has the right to perform searches that serve interests in
promoting efficient operation of the workforce.
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Electronic Monitoring of Public Employees:
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Government employers can weaken expectations of privacy by informing
employees that they do not have an expectation of privacy, or that their
desks, computers, & lockers may be searched.
Note: this can also apply to work performed at home, particularly if it involves
govt-issued equipment. See: TBG Insurance v. Zieminski (CA Ct of Appeals,
Feb 2002) (fired exec accessed porn at office; employer moved to compel
access to home computer citing company policy)
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Other Electronic Services & Devices and Workplace Privacy
Issues:
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Email: Can you monitor employee emails? Courts now generally assume
that emails are monitored; “no reasonable expectation of privacy.” NLRB
opinion says you can’t prohibit all non-business use of office emails as they
might include union solicitations (Pratt & Whitney), but, reasonable
restrictions on personal email/Internet use ok (Associated Press).
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Internet Use: Problems related to accessing public files from office vs.
“private folders”, etc.
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Electronic Bulletin Boards: In Konop v. Hawaiian Airlines, an airline
employer used third party access codes to access the Plaintiff's "secured"
website, where unfavorable comments about the airline had been posted.
Plaintiff had pled a potential violation by the airline of the Stored
Communications Act in that the supervisors were not authorized "users" of
the employee's secured website without proper authorization.
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Other Electronic Services & Devices and Workplace Privacy
Issues (cont.):
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Cell phones/Pagers: (Quon v. Arch Wireless Operating Company, Inc; Court
found that the department’s informal policy of occasionally allowing personal
use of pagers undercut the formal policy allowing the department to review &
monitor all pager messages.)
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Location & Monitoring Issues: A “roving bug” occurs when a government
agent “with court approval & mobile-phone carrier assistance required by
law[,] can exploit mobile phones over the air in such a way that microphones
in handsets are activated & nearby conversations picked up by federal
investigators.
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Office Telephone Use/Monitoring: ECPA prohibits, but, Employers have
generally been permitted to rely on one of three exceptions: (a) the business
extension or ordinary course of business exception; (b) the consent
exception; & (c) the provider exception.
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Other Electronic Services & Devices and Workplace Privacy Issues
(cont.):
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Telephone Records: see National Security Agency cases. (CPNI violations).
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Office Telephone Use/Monitoring: ECPA prohibits, but, Employers have
generally been permitted to rely on one of three exceptions: (a) the business
extension or ordinary course of business exception; (b) the consent
exception; & (c) the provider exception.
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Telephone Records: Hepting v National Security Agency (CPNI violations;
FISA; Common Law Privacy)
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What’s An Ethics Officer to Do?
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If criminal conduct suspected, a court order may be necessary.
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All workplaces ought to have clearly defined internal rules & procedures for
handling every form of electronic communications.
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Electronic communications policies need to be in writing.
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They need to be explained to all employees.
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These policies need to be routinely honored & enforced.
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They need to be revised whenever new laws, cases, technologies or
situations warrant their reconsideration.
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Locations
Washington, DC
Los Angeles, CA
575 7th Street, NW
Washington, DC 20004
202.344.4000
2049 Century Park East, Suite 2100
Los Angeles, CA 90067
310.229.9900
New York, NY
Baltimore, MD
405 Lexington Avenue, 56th Floor
New York, NY 10174
212.307.5500
Tysons Corner, VA
8010 Towers Crescent Drive
Tysons Corner, VA 22182
703.760.1600
Two Hopkins Plaza, Suite 1800
Baltimore, MD 21201
410.244.7400