To Read Or Not to Read: Privacy within Social Networks, the Entitlement of Employees to a Virtual Private Zone, and the Balloon Theory

Abstract

This paper addresses the question of whether employees should have a right to privacy within the virtual sphere of their workplaces, both at the workplace and while using employer-owned property, such as computers and networks. I conclude that there are strong justifications for a paradigm in which a sphere of privacy would be delineated within the virtual workplace, providing employees protection from employer intrusiveness. In other words, my main claim is that employees should have a “private zone” within the employer wired/digital/virtual premises, even when using corporate network tools or accounts (i.e. Internet accounts) and even during working hours. The reasonable expectation of privacy test implemented by the public sector, when applied within a modern virtual workplace realm, (almost) completely eliminates employees’ privacy rights. The same result of drained privacy rights has been diagnosed in the private sector by Professor Christine Jolls, who found that non-governmental workers overwhelmingly lose their rights when courts apply a test that examines explicit or implicit consent (all employees “agree” to waive the right to privacy). The outcome is that employees (almost) totally lost their privacy rights within the virtual spheres of the workplaces. Furthermore, the article argues that U.S. legal realm, stemming from court decisions, which eventually distinguish between privacy within tangible premises of the workplace versus virtual spheres, should be reconsidered and refined. The traditional test as set forth by the Supreme Court in its 1987 O’Connor v. Ortega decision, recognizing that employees’ tangible workplaces (such as a desk or cubicle or office) in a public office may be deemed as private space, should be applied to today’s virtual workplaces, extending the law so as to integrate it with the realities of the digital era. The employee expectation test as well as other contract and tort theories likewise should be either replaced or adjusted to this notion of virtual workplace privacy zones. Securing a private zone to U.S. employees, a concept adopted by several other legal regimes, is justified by a bundle of psychological theories that can be concisely described as the “balloon theory,” describing the importance of a private sphere that constantly and permanently surrounds the persona wherever one goes, including within the public domain and digital spheres. Studies have shown that providing private zones fosters a sense of responsibility and accountability and, consequently, improves employee productivity. This theory is consistent with court decisions outside the US (i.e. the Israeli Isakov case). Accordingly, I conclude that we should reconsider these tests in order to secure a threshold of a Private Zone within the virtual workplace. A new policy may implement new tests or make use of existing tools, such as the “Least Invasive Mean” (the Proportionality Analysis).