120 Chapter 6 D DISCUSSION CASE: Electronic Privacy at Work oes your employer have the right to read the e-mails on your work ac- count? Should your employer be allowed to monitor your Web-browsing history? Does your employer have the right to read text messages you send on your work-provided Blackberry or I-phone? Can you be fired because your boss read the disparaging comment you made about your employer on your Facebook page or on your blog? If your employer provides a company car for your work, is it reasonable that your trip be tracked via a GPS system installed in the car? If you worked in a Human Resources department and were responsible for hiring, would you visit the Facebook page of a potential employee and use the information you found there in your hiring decision? Would you re- quest to become a friend of potential employees in order to gain more infor- mation about them? Would you "google" potential employees? Consider the following cases. In October 2010, Dawnmarie Souza filed a complaint with the National Labor Relations Board (NLRB) against her employer, American Medical Re- sponse, an ambulance company in Hartford, Connecticut. She alleged that she was unjustly fired because of critical comments about her employer that she had posted on her Facebook page. The NLRB ruled that her post met the con- ditions of protected speech in that it occurred in a public forum with other employees and concerned the "terms and conditions of employment." Thus, this Facebook post was legally equivalent to the type of conversations that occur in union halls and other labor organizations. In March 2012, the Associ- ated Press reported the case of Justin Basset, a Seattle man who was seeking a job as a statistician. While asking standard character and reference questions during a job interview, the employer ask Basset for his password so that she might review his Facebook page. Basset refused and was not considered for the job. In an earlier case, Jeff Quon was a police officer for the city of Ontario, California. The Ontario Police Department provided Quon with a pager and paid for a limited number of texts each month. Officers who used more than the limit could pay for the overage fees. When the city police chief wondered how often officers used the devices for personal use, he requested and received transcripts of all the texts from the wireless service provider. He discovered that fewer than 60 of Quon's 450 text messages were personal, and many of those were sexually explicit messages sent to his girlfriend. Quon and three other officers sued the city when they learned that their text messages had been read by the police chief. In a split decision, a federal appeals court ruled in Quon's favor, conclud- ing that he had a reasonable expectation of privacy stemming from the U.S. Constitution's Fourth Amendment's protection against unreasonable searches and seizures. The city appealed and the U.S. Supreme Court heard arguments in the case in the spring of 2010. Because Quon was a government employee, the Fourth Amendment clearly applied in his case, but that amendment does 121 not prohibit private employers from conducting searches, reasonable or other- wise, against employees. The Supreme Court's decision in this case could set a precedent for workplace privacy if the court issues a broad ruling that includes private employers. Kevin Colvin was an intern at Anglo Irish Bank in Massachusetts when he e-mailed his boss on the afternoon of October 31, 2007, and explained that he had to miss work because of a family emergency in New York City. The next day a picture of Colvin dressed as a fairy while attending a Halloween costume party appeared on Facebook. Colvin's boss discovered the time-stamped pic- ture, and pasted it into an e-mail that he sent back to Colvin and on which he "cc'd other employees. Colvin was fired as a result. Finally, consider Dan Leone, a stadium worker for the Philadelphia Eagles. After the Eagles traded Brian Dawkins, one of his favorite players, to the Denver Broncos in March 2009, Leone posted a Facebook note that said Dam Eagles R retarded!!" [sic] A few days later the Eagles fired Leone. In late March 2012, in response to cases such as these, U.S. Senators Richard Blumenthal (Conn.) and Charles E. Schumer (New York) requested an investi- gation by the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice. Blumenthal and Schumer described "a new disturbing trend of employers demanding job applicants turn over their user names and passwords for social networking and e-mail websites to gain access to personal information like private photos, e-mail messages, and biographical data that is otherwise deemed private. Blumenthal and Schumer described the practice as "disturbing" and "a grave intrusion into personal privacy." DISCUSSION QUESTIONS 1. In the Quon v. Ontario case, the police officers filed a lawsuit even though they were not fired for the information that the police chief learned about their text messages. How, if at all, is someone harmed simply by another person reading private text messages? 2. Both Souza and Leone were fired for what they posted to Facebook. Should they have been surprised that their employers might read their postings? It is unknown if Colvin knew about or consented to having his picture posted to Facebook. What issues does this raise? 3. In both the Souza and Leone cases the employers did not give the