Foreword: What We Talk About When We Talk About Workplace Privacy
| Author | Anita Bernstein |
| Position | Sam Nunn Professor of Law, Emory University, and Wallace Stevens Professor of Law, New York Law School |
| Pages | 923-944 |
Page 923
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Sam Nunn Professor of Law, Emory University, and Wallace Stevens Professor of Law, New York Law School. My thanks to the editors of the Louisiana Law Review and Professor William Corbett for the exquisite hospitality_and careful logistics_that they brought to this Symposium, and to Michael Ausubel for skilled research assistance.
When seven academic experts gathered in Baton Rouge to expound on the elusive concept of workplace privacy, they kindly kept a place for me at their table to attempt a summary of their insights. Consistent with the soupon of technophobia that flavors most contemporary gatherings on the law of workplace privacy in the United States,1 I start by encouraging readers to fight the tendency of electronic media to cut law review commentary into small pieces2 and read, if they can, the entire collection of seven papers published in this issue of the Louisiana Law Review. With utter confidence I say that no matter how deep or shallow your knowledge of this field may be, you will find material for reflection here, both in the individual papers and the book that they combine to form.
Many possible divergent approaches in a Foreword could try to unite this bounteous collection. My own overview begins with its disarray: How can one speak of workplace privacy, given that this field has (at least so far) refused to settle on a definition of this term?3 During our weekend at the LSU campus, speakers Page 924 occasionally lamented the lack of cohesion or unity in our subject matter. They had standing to express regret: they live in the field. For me as outsider-observer, the lack of an agreed-on definition of workplace privacy seemed of interest_revealing and informative_rather than problematic. So I sat at the table and wrote down what I heard speakers offer as partial aspects of the concept.4 Let me next share some of what the Symposium contributions say here, and then investigate how, perhaps, the dots connect.
In lieu of a definition, our Symposium contributors relate workplace privacy to a range of complementary concepts.
Participants invoke workplace privacy with reference to what employers invade or trammel on the job. Observed urination, for example, strikes two participants, Dean Steven Willborn and Professor Pauline Kim, as an invasion.5 Professor Michael Selmi remarks that global positioning devices used to monitor employee whereabouts "may seem intrusive," although Selmi goes on to conclude that "functionally they are little more than a substitute for Page 925 visual monitoring."6 Professor Charles Craver refers to "cameras or microphones" that "spy upon the protected organizational activities of employees."7
These references to surveillance rest at the edges of participants' contributions. No author deems them central to the material he or she covers. Several of them note the evident lawfulness of surveillance at work. Putting aside exceptionally intrusive invasions_such as a surreptitiously mounted one-way glass looking into toilet stalls_along with intrusions into concerted activity, our participants agree that employees have no legally recognized privacy interest in remaining free from employer snooping. Courts regard the acceptance of employment as acceptance of the invasions that employers choose to impose.8
Keystrokes at computer terminals may be monitored; GPS tracking devices can beam to an employer where employees are; workers' e-mail is not sacred. "To the extent we equate privacy with an ability, or a desire, to hide things, employers are rightfully suspicious of broad declarations of privacy rights for their employees," concludes Selmi.9
(As a spectator at the conference, I would like to have seen a little more of a fight on surveillance. One might argue, for instance, that observation via closed-circuit television camera is worse than the human-on-human snooping to which Selmi compared it_if only because a video image of a face can be rewound and replayed, edited, and enlarged into grotesque nostril- boring expansion, whereas the human snoop gets nothing to exploit beyond his glance.10 Conference participants did not argue against Page 926 the pro-surveillance consensus in American law. And yet most of them did take a moment to mention the topic. They noted the way people feel when they are snooped upon, without advocating law- based relief to ease this discomfort.)
References to autonomy arise frequently in this Symposium, although not every contributor favors this word. At the conference and in his article, Willborn prefers to speak of "consent." In this volume he begins with the somber sketch of privacy that Ruth Gavison pioneered a generation ago.11 Gavison contrasts "perfect" privacy with the perfect absence of privacy using three variables_"secrecy," "anonymity," and "solitude"_that combine to express a level of accessibility. A person experiences perfect privacy when nobody has information about her (Gavison's "secrecy"), "no one pays attention to her (anonymity), and no one has physical access to her (solitude)."12 At the other end of the accessibility continuum, a person experiences "a state of perfect lack of privacy" when all information about him is known; everything he does is known and attributed to him by his name; and he is continuously observed.13 Neither extreme makes for a desirable way to live. The concept of consent, Willborn argues, mediates between the two extremes, or at least it can do so away from the workplace. Willborn concedes that "consent in employment settings is difficult and compromised."14 In dealings with some people, we all want solitude, secrecy, and anonymity; in dealings with others-our intimates or people who might become our intimates_such conditions would make us feel bleak and isolated. Like the anti-surveillance version of privacy just mentioned above, Willborn's consent-based version of autonomy works with negative concepts. Privacy in this view is manifest in its barriers.
Other participants, providing a contrast, invoked autonomy with reference to overt, or positive, expressions. In the view of Professors Rafael Gely and Leonard Bierman, employee-created Page 927 blogs fit within the subject matter of this conference, even though one might think of a blog as the opposite of privacy: Gely and Bierman note that reading a blog once felt like "reading someone else's diary over their shoulder."15 Around the time of the 9/11 terrorist attacks and the beginning of war in Iraq, however, the blog took on a different identity. Gely and Bierman note the distinctive features of blogs: a reverse-chronological presentation of content, the use of links, interactive capacity, and low entry costs.16 These characteristics combine to bring the blogger into the reader's life in a relationship that is much more dynamic and fluid than the relation between, for example, newspaper editorial writer and reader. From there, Gely and Bierman suggest, it is a short step indeed for a blogger to feel she needs this medium: the blog comes to be integral to who she is and how she communicates with other people. To shut it down would feel like an amputation.17
Not surprisingly, as Gely and Bierman show, the expression within employee blogs has gotten workers in trouble with their employers,18 while employers for their part have adopted the medium to present themselves in a flattering light:19 the blog as artifice and P.R. For increasing numbers of employees and employers, the blog embodies and expresses a version of their personality that they adopt and reshape in response to feedback from their readers. Page 928
Professor Catherine Fisk explores another positive variation on the theme of workplace privacy as autonomy, or what she calls "autonomy privacy": "Clothes and appearance are constitutive of how we see and feel about ourselves and how we construct ourselves for the rest of the world,"20 she writes. Like a blog, clothes seem unrelated to privacy as understood in either anti- surveillance sentiment or the Gavison-Willborn concepts of secrecy, anonymity, and solitude.21 When privacy emerges as autonomy, however, it becomes possible to find violations of it in edicts to change one's display or to stop displaying. Fisk reminds us that David Stern of the National Basketball Association decreed "that professional basketball players should dress like businessmen rather than rappers when they appear in public," while Yankees- meister George Steinbrenner forced a haircut on star center fielder Johnny Damon. These employers were "trying to make employees project an image that the employees [did not] want to project,"22 thereby treading on autonomy. Fisk concludes that privacy theory should be "available to any employee who can convince a court that some aspect of a dress code is offensive to their authentic self."23
The "autonomy privacy" understanding of workplace privacy, though broader than the negative understanding that Willborn expresses, is narrower than a version of workplace privacy found in some European legal systems. These conceptions go beyond the episodes of autonomy that Gely, Bierman, and Fisk have presented_freedom to blog, freedom to groom or not groom according to a boss's wish_by constructing a legal doctrine of personhood that recognizes enforceable rights and entitlements. In his writings on comparative workplace privacy, Professor Matthew Finkin suggests that English may lack some essential words that could shed light on this concept. Page ...
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