1 mr. smith-business law chapter 3-privacy and technology “you already have zero privacy-get over...
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Mr. Smith-Business LawChapter 3-Privacy and Technology
“You already have zero privacy-get over it” -Scott McNealy, CEO, Sun Microsystems
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Human beings must experience a degree of privacy to thrive. Yet, as they act inside
organizations, they frequently need information about one another, information
that may be sensitive and confidential
Page 70
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Tension between privacy and the need to know is heightened as computer technology
revolutionizes information gathering.
The process has never been so fast, so efficient, so omnipresent
Page 70
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Mr. Smith-Business LawChapter 3-Privacy and Technology
This chapter covers:
The value of privacy
Efforts employers are making to control employees’ off-the-job behavior
Should employers be able to fire you for unhealthy habits?
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Mr. Smith-Business LawChapter 3-Privacy and Technology
This chapter covers:
Should employers be able to fire you for dating someone who is married?
Workplace testing
Constitutional privacy protection
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Mr. Smith-Business LawChapter 3-Privacy and Technology
This chapter covers:
Justification for government surveillance
Genetic testing
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Surveillance at Work
E-mail Interception
Ninety percent of all companies with more than 1000 employees currently use email,
putting about 40 million workers on e-mail systems and sending 60 billion messages
annually Page 71
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Surveillance at Work
E-mail Interception
Because they use passcodes, employees may believe their e-mail messages are private, but
the reality is that they are not
Page 71
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Michael A. Smyth v. The Pillsbury Company
Company maintained an e-mail system
Plaintiff assured that e-mail was confidential and privileged
Further assured that e-mail could not be intercepted and used as grounds for
termination or reprimand Page 71
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Michael A. Smyth v. The Pillsbury Company
Smyth argued “invasion of privacy” by “intrusion”
Judges use a “balancing test” weighing the employee’s privacy interests against the employer’s need to discover information
Page 71
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Michael A. Smyth v. The Pillsbury Company
We do not find…intercepted by management
Judges did not find that a reasonable person would consider the company’s interception of these
communications to be a substantial and highly offensive invasion of his privacy
Pages 71-72
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Michael A. Smyth v. The Pillsbury Company
The company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system out-weighs and privacy interest the employee may
have in those comments
Page 72
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Debate
•Started in 1880’s by Fredrick Taylor
•He monitored…work very closely•Whereas most companies carry out…increasingly sophisticated
•Programs exist…for particular images•Businesses justify electronic…and encourages efficiency
•Countering all this…who work best
Pages 73-74
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated.
-Fourth Amendment, U.S. Constitution
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
No express “right to privacy” was written into the U.S. Constitution…by the government
There is no constitutional protection against searches and surveillance by private corporations
Page 74
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
Most courts consider two main factors:
1.The obnoxiousness of the means used to intrude, that is, whether it is a deviation from the normal, accepted means of discovering the relevant information
2.The reasons for intrudingPage 74
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
Because electronic monitoring is now commonplace, it may be considered “normal”,
if not “accepted”, and, as long as employers can point to a legitimate purpose for monitoring, it
will be difficult for employees to win a case against them.
Page 74
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
The 1968 Federal Wiretap…to the ECPA
There is no protection for communications that are “readily accessible to the general
public” such as public chat room exchanges
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Electronic Surveillance: The Law
The law does not apply…would be allowed
Pages 74-75
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Value of Privacy
The Functions of Privacy
The functions of privacy for individuals in democratic societies can be grouped conveniently under four headings:
Page 75
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Value of Privacy
The Functions of Privacy
1.Personal Autonomy
2.Emotional Release
3.Self-Evaluation
4.Limited and Protected CommunicationPage 75
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Functions of Privacy
Personal Autonomy-The most serious…or psychological means
Emotional Release-Life in society…of emotional release
Almost everyone does…this is prohibitedPages 75-76
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Functions of Privacy
Self-evaluation-Every individual needs to integrate his experience into a meaningful pattern and to exert his individuality on events.
To carry on such self-evaluation, privacy is essential.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Functions of Privacy
Limited and Protected Communication-The greatest threat to…at all times
Privacy for limited and protected communication…disclosing his confidences
Psychological distance is…servants or children
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Mr. Smith-Business LawChapter 3-Privacy and Technology
The Functions of Privacy
George Orwell carried out the classic analysis of how surveillance can exert this negative pressure.
In the novel 1984…to observe the populace
Computers on the…any individual wirePage 78
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
When he opened…bathing frequently
As we read…was being followed
Page 79
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
In 1968, then…perform on-the-job.
He wrote…recognize that line
Our primary objective…on from everyone
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
Employers want to curb habits that drive up the cost of health care premiums.
From this perspective, smokers…number of strategies
Former ACLU president Ira Glasser has said: If an employer believes…it’s going to last
Pages 79-80
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
Today, a majority of states have some version of off-the-job privacy protection laws.
In New York, for instance, it is illegal…or TV-watching
Laura Allen was married but separated…were both fired
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
State of New York v. Wal-Mart Stores, Inc.
In February 1993…his or her own spouse.
Labor Law defines “recreational activities” as….movies and similar material.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
State of New York v. Wal-Mart Stores, Inc.
To us, “dating” is entirely distinct from and, in fact, bears little resemblance to “recreational activity”.
When two individuals…they are not “dating”.
Pages 80-81
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lifestyle Control
State of New York v. Wal-Mart Stores, Inc.
Dissenting Opinion-
In my view, given the fact…is indefensible.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Are you a homosexual?
Do you know of any reason why you could be blackmailed?
Do you get along with your spouse?
Are you a communist?Page 82
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Do you have any money in the bank?
Have you ever stolen anything and not been caught?
These are a few questions asked…Coors in 1977.
Page 82
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Karraker v. Rent-A-Center
To prove their worth…personality and knowledge tests
Pages 82-83
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Karraker v. Rent-A-Center
As part of…measure personality traits
Applicants were asked…true or false
{read the questions}
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Karraker v. Rent-A-Center
Americans with disabilities…other types of disabilities
Congress enacted three….people with disabilities
Psychological tests that…habit” do not
Repeating the claim…keys that morningPages 83-84
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
Karraker v. Rent-A-Center
Because it is designed…violated the ADA
Page 84
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Testing
The claim that only…and tinting others
The aim is to…subject to passive object
Although it is advertised…for their own good
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Consumer Privacy
According to a study by the research firm…without their consent.
Timothy v. Chase Manhattan Bank
The complaint alleges that…any unrelated third party.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Consumer Privacy
Timothy v. Chase Manhattan Bank
Allegedly unbeknownst to the plaintiffs…and other financial data.
These lists were then provided…offered were purchased.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Consumer Privacy
Europe vs. America: Dignity vs. Liberty
Continental privacy protections are…spared embarrassment or humiliation.
By contrast, America, in this…in one’s own home.
Page 89
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Consumer Privacy
Europe vs. America: Dignity vs. Liberty
European Privacy Directive
Under the Privacy Directive, each member…freedoms of the data subject.
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Privacy Under the Constitution
The Fourth Amendment protects the “reasonable expectations of privacy” of both individual and
corporate citizens against unwarranted and unreasonable searches or seizures.
Whenever the government… “privacy” claim
While the Fourth…by private corporationsPage 90
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lanier v. City of Woodburn
On February 5,…with drugs or alcohol
Plaintiff wrote Sprauer…and civil rights
Sprauer supported the…of the City
Pages 90-91
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Lanier v. City of Woodburn
Plaintiff alleges the…United States Constitution
The City claims…influence of drugs
{Q and A}
The City’s policy is…United States Constitution
Pages 91-92
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Privacy in Medical Information
One of the most disturbing flashpoints where technology has outstripped privacy protection involves the health care
industry.
Profoundly confidential medical…and/or processing it.
Page 94
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Norman-Bloodsaw v. Lawrence Berkeley Laboratory
Federal Constitutional Due Process Right of Privacy
The constitutionally protected…and its confidentiality
These tests may…expectations of privacy
Pages 95-96
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Privacy in Medical Information
Title VII Claims
Section 703(a) of Title VII…or national origin.
The Pregnancy Discrimination Act…and pregnancy.
Page 96
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Genetic Testing in the NBA
In 1990,…over and died
Both of these…of HCM cases
In 2001,…the Chicago Bulls
The Bulls insisted…code seem simple
In the end… “hot button” issue Page 98
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Privacy in Medical Information
Genetic Testing: Economics and Ethics
Ladies and gentlemen,…will smell of gasoline
Page 98
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Thinking About Discrimination in the Genetic Age
The U.S. Supreme Court…her foster parents
In 1927,…of Darwin’s theories
The Court emphasized…feeble-minded daughter
Years later in 1979,…after Buck v. BellPages 99-100
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Mr. Smith-Business LawChapter 3-Privacy and Technology
Genetic Discrimination in the Workplace
Should an employer…will not be misused
The potential for…of our destiny
In 1995,…in the courts
With advances in…who is “disabled”
Are we going…called illegal discriminationPages 100-101
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Now You Know Everything There is to Know About:
Privacy and Technology