The debate for
electronic surveillance in a court of law has
been controversial since the beginning of the
century. In Olmstead vs. United States, [1928]
the expediency of electronic device, the telephone,
in extracting “confessions” were used
as evidence against the petitioner. Although Chief
Justice ruled against Olmstead, dissenting that
the use of wireless tapping of telephone conversation
did not constitute to “seizing of property”
therefore there is no violation of the Fourth
amendment as a consequence there is no violation
of public rights to privacy as stated in the Fifth
Amendment [Olmstead vs. United States, 277 U.S.
438 (1928)].
In later cases [Katz vs. United States, 389 U.S.
347 (1967)] one sees that as technology in communication
improved the implication and magnitude of its
uses as incriminating devices were realized. In
KatzVs. United States the Judge reversed the dissent
in Olmstead vs. United States and declared that
it violated Federal Communication Act Sec. 605,
which limited the governmental organization’s
reach to public privacy in the matter of wiretapping.
[In this case government personnel attached listening
devices to a phone booth from which waves were
tapped to listen into the conversation].
The interpretation of Fourth Amendment had to
undergo changes, as it did not cover communication
mechanisms in its clause where right to issue
warrants was concern. The right to issue warrants
were based on evidence but these evidence were
contracted through means that violated the Fourth
and Fifth Amendments which in turn justifies for
its nullification. The idea of the decision in
Katz vs. United States was to safeguard the government
from espionage attacks from external forces [e.g.
the Soviet during the Cold War]. However, the
effect of the decision changed the perception
of the Supreme Court for cases against public
interest. Recorded conversations became impermissible,
as it would violate the Fifth Amendment by incriminating
defendant. Electronic surveillance whether used
by government personnel or private became illegal,
as it would constitute the seizure of privacy,
if not property.
In this context when one consider another wave
of change in technology in Kyllo vs. United States
[2001] then the dissent was justifiable. Agents
used thermal device to scan Kyllo’s garage
to check on the heating system, which would incriminate
him as a marijuana grower. Despite the positive
evidence, the Judge upheld that Kyllo’s
garage did not constitute private domains, therefore
the evidence did not “exposed to intimate
details of Kyllo's life”.
With increasing growth of global technology like
GPS [Global Positioning System, Radar, etc.] it
would be clearly easy for any government personnel
to track people in their own home or any other
domain of privacy. The dissent in Kyllo’s
case would imply the freedom to choose, to live
and to communicate freely would be violated in
future legal systems. In a broader prospect governments
of the world may upheld that their position as
a defender of their people and their domains are
justifiable, even if it means defending through
the use of surveillance devices, incriminating
the public. The future of the rights to privacy
as indicated in the Fourth Amendment would surely
be violated so will the Fifth Amendment because
it allows militia surveillance to safe keep public
against war even if it means violating their private
lives. In the recent case of War Against Terror,
the Fourth and Fifth Amendment would have to support
operations that might constitute as invasion of
privacy, a dictum that the Supreme Court has been
fighting against in the last few years due to
information technology [McCullagh, 1999]. It would
be hard for the Constitution to protect the right
of the public when the Amendments are interpreted
in terms of the legal systems of the world.
The purpose is to investigate an issue / topic
regarding criminal justice. In a situation where,
“Privacy is for the unemployed” is
the message employers are sending, the topic of
electronic surveillance in the workplace is highly
controversial. It is surprising how many people
think companies are respecting their electronic
privacy when, in fact, invasive corporate monitoring
is all too routine. Many companies think employees
should surrender cherished liberties and subject
personal communications and electronic property
to constant scrutiny and incessant examination.
If the government tried something like that, everyone
would be up in arms. Such a practice would be
deemed unconstitutional. E-mail instantaneously
distributes interoffice communications discreetly,
it is green (saves paper and makes telecommuting
more viable), and it provides increased productivity
while saving money on such applications as payroll.
Why would companies want to discourage the use
of such a great resource by making workers paranoid
about using it?
The Internet has created a need for employers
to update or create sound employment policies
that take into account the empowerment potential
of the Internet as well as the potential for abuse
of Internet access privileges. Beyond obvious
productivity loss, improper use of the Internet
also presents liability issues to the employer.
Examples include:
- Downloading of pornographic images by employees
and displaying those images on their monitors
can result in a finding that the employer created
a "hostile" work environment.
- Downloading and reproduction of material from
the Internet may result in a finding of infringement
of intellectual property rights.
- Monitoring of employee Internet use without
policies or indication to the employees may violate
employees' reasonable expectations of privacy.
Employment policies can effectively prevent problems.
In the event there is a problem, the policies
will assist the employer in defending its position
against claims based on employee conduct in contravention
of the policy. The policies should even appear
on their computer screens when they start up a
potentially monitored activity. People are more
likely to accept monitoring if they see it as
a fact of life, like walking through the metal
detector at an airport. People appreciate straightforward
explanations. Preparation of an employment Internet
use policy should involve experienced legal counsel.
A balance must thus be struck between employer
interests and employee interests in privacy, a
balance that, in the end, allows for surveillance
under certain limited conditions, stressing less
intrusive approaches. This is the balance that
will not only protect an employee’s privacy,
but would guard the employer’s benefits
also. That system vitally includes a monitoring
procedure, a monitoring policy that should be
well communicated and widely publicized and the
penalties on violations.
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