Workplace Blogs and Workers' Privacy

• Author: Rafael Gely/Leonard Bierman
• Position: Rafael Gely is a University of Cincinnati, College of Law/Leonard Bierman is a Texas A&M University, Mays Business
• Pages: 1079-1110

Page 1079

Rafael Gely is a University of Cincinnati, College of Law.

Leonard Bierman is a Texas A&M University, Mays Business School.

I Introduction

Over the years, the ability of employers to impinge upon the privacy rights of their employees has been shaped to a large extent by technology. New forms of technology have allowed employers to more intrusively and surreptitiously monitor employees while at work in forms that were unimaginable few years ago.¹ Advances in technology even allow employers to monitor employees outside the traditional confines of the physical workplace.² Employees who work at home are subject to monitoring through webcams, or monitoring of keyboard strokes.³ Even employees whose jobs take them on the road are subject to monitoring through satellite monitoring through GPS positioning devices.⁴

Technology serves also a different function. Technology helps create new ways for employees to communicate and interact with other employees both in and outside the workplace. Most observers will agree, for example, that the advent of email has dramatically changed not only the format or style in which Page 1080 communications occur within organizations, but even perhaps the substance of some of the type of conversations that occur within individuals in those organizations. Email communications have without a doubt changed the way we interact with each other at work, how often we talk to our colleagues, and how we communicate with them.⁵ For example, email communications are more easily traced than phone conversations; therefore, the use of email communications is more likely to alter the behavior of parties involved in generating them.⁶ In short, technology has not only changed the means we use to communicate with each other, but more profoundly, the actual way we talk to each other.⁷Among workers, we argue, technology also has opened the door to the creation of new spaces where conversations can take place.

In this article we focus on a related issue. We discuss the development of blogs, and the virtual "space" where blogs and bloggers interactthe "blogosphere" and their impact on the issue of workers' privacy. To some extent it would seem a bit of a contradiction to talk about privacy and blogging in the same article. Blogging, as we will discuss below, does not appear to be the most private of enterprises. There are, we argue, a number of interesting privacy issues raised by the development of blogs as an employee communication tool and by the way employers have reacted to it. In Part II we begin by describing what blogs are. We argue that the importance of the development of blogs and the so called "blogosphere" lies in the fact that it has created a new "space," albeit a virtual one, where workers communicate.

When confronting new forms of communication, employers have reacted primarily in two ways. The traditional way involves intrusive and secretive monitoring of employee's actions. We use the image of a "prying employer" to illustrate this type of privacy issue. We develop this argument in Part III.

The development of blogs, however, has also unearthed a perhaps more complex, and dangerous side, although to some extent "post-legal" side, to the invasion of privacy story. This unconventional invasion of privacy, what we refer to as the "manipulating employer," involves employers' attempts to turn Page 1081 blogs around into tools of control which give them access into the lives of employees. We develop this argument in Part IV. Part V concludes the article.

II Blogs as Creating a New Space to Communicate

A blog, you see, is a little First Amendment machine

Webster's ⁸Dictionary defines a blog as "an online diary; a personal chronological log of thoughts published on a Web page."⁹While accurate as far as it goes, this definition is by no means complete. In fact, the very incompleteness of the definition reflects the very fast changing nature of the blogosphere.

Not that long ago, blogs were associated with personal online diaries "typically concerned with boyfriend problems or techie news."¹⁰ Writing about his early experiences with blogs, Andrew Sullivan, noted that to a large extent blogs were, "quirky, small, often solipsistic enterprises."¹¹ He singled out the site of an earlier blog pioneer for discussing "among other things, his passion for sex and drugs,"¹² and summarized his early impressions of blogs by noting that "reading them is like reading someone else's diary over their shoulder."¹³

Things changed. Between the terrorists attacks of September 11, 2001, and the beginning of the war against Iraq, blogs became more than "stream(s) of blurts about the writer's day."¹⁴ These events generated a search for a new form of communication. According to Sullivan,

The blog almost seemed designed for this moment. In an instant, during the crisis, the market for serious news commentary soared. But people were not just hungry for news, I realized. They were hungry for communication, for checking their gut against someone they had come to know, Page 1082for emotional support and psychological bonding. In this world, the very personal nature of blogs had far more resonance than more impersonal corporate media products. Readers were more skeptical of anonymous news organizations anyway, and preferred to supplement them with individual writers they knew and liked.¹⁵This account suggests that the dramatic events of the first few years of the new century created a need not only for information, but for a more interactive and personal form of getting information-a form of communicating that generated trust. We argue that blogs provided a format which facilitated those kinds of conversations to take place.¹⁶ Those conversations, in turn, transformed themselves into the space which we now refer to as the "blogosphere."

What factors might explain the ability of blogs to generate such an immense amount of trust? Commentators have suggested that the answer lies, not in the content of blogs, but in their format. In particular, commentators note four aspects of the format in which blogs are published that have played an important role in their fast growing influence and popularity: reverse chronological order, the use of "links," their interactive nature, and low entry costs.

The first two features are ubiquitous. Unlike earlier web pages, "bulletin boards" and "discussion groups," the comments, or posts, appear in a blog in reverse chronological order. Most recent commentary appears at the top of the blog. This simple format characteristic creates an expectation on the reader's part that the blog will be updated regularly, and thus, that it should be visited time and time again, potentially several times the same day. And the updates are expected to add value, to be important and timely, and thus they are placed right at the top, the first thing the reader sees when opening a blog.

Value can be added in many different ways, and certainly, the posting of commentary, opinion and analysis is an important part of that. Bloggers have found, though, a new source of value: the "link." A link is simply a way of pointing the readers to a different Page 1083 site. In the 1990s as the Internet developed, the objective of commercially driven websites was to capture their visitors' attention by getting them to stay on their websites.¹⁷ The focus was on providing comprehensive websites which included every possible type of information wanted by the reader. It was common for the websites to prohibit the use of any external link.¹⁸ Blogs are based on precisely the opposite model. Blogs link to "anything and everything."¹⁹ "As counterintuitive as this may seem from an old-media perspective, weblogs attract regular readers precisely because they regularly point readers away."²⁰

Links have thus become the blogs' currency. Links allow blogs to add value in various ways. By linking to the sources of their commentary, the bloggers provide readers a context in which to place the blogger's comments.²¹ By contextualizing information, links also generate transparency. Links allow the reader to access the very sources used by the blogger, and evaluate the blogger's interpretation and analysis.²² The blogger's selection of links also serves a filtering function. Commentators argue that blogs represent a very useful and adept instrument in what perhaps is the key challenge individuals face in the information economy, i.e., "to develop avenues to information that genuinely enhances our understanding, and to screen out the rest."²³ Because the reader "gets to know" the blogger, and his or her point of view, the reader can delegate to the blogger the job of keeping the reader informed as to specific issues, or more generally, as to what is happening out there.²⁴

A third characteristic of blogs which has enabled them to concurrently generate vast amounts of trust is their interactivity. The technical feature that facilitates this function is the "comment Page 1084 system."²⁵ The comment system allows readers to comment on the bloggers' posts. The comments become part of the blog, and can be accessed not only by the blogger, but also by other readers. More fundamentally, however, the blogs invite interactivity. Bloggers frequently invite their readers to comment, or to...