Key Distinctions Between Unreasonable Vs. Reasonable In The Concept Of Encryption
”At the forefront of any discussion regarding privacy are the privacy protections afforded to individuals by the Fourth Amendment to the U.S. Constitution” (Perez & Perez, n.d., p. 1). In the professional workplace environment, identifying the boundaries between protecting employers’ interests (e.g.,productivity, operational efficiency, and working climates) and privacy protections afforded to employees under the Fourth Amendment are critical in determining the factors that constitute Reasonable Expectation of Privacy. By definition, the Fourth Amendment in terms of privacy protection in the professional workplace environment, “it governs searches and seizures by public employers of their employees’ private property” (Perez & Perez, n.d., p. 1).
the determining factors that will support the employees’ Expectation of Privacy in court rulings will be based on a case-by-case basis. According to O’Connor v. Ortega (1987): An expectation of privacy in one’s place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees’ expectations of privacy unreasonable.
Given this ruling from the O’Connor v. Ortega (1987) case, Justice Sandra D. O’Connor and her colleagues overturned the verdict against “Dr. Magno Ortega, a physician and psychiatrist who held the position of Chief of Professional Education at Napa State Hospital for 17 years until his dismissal from that position in 1981” claiming that Dr. Ortega did not have reasonable expectation of privacy against his former employer. This verdict shed new light into the gloomy boundaries between Unreasonable vs. Reasonable Expectation of Privacy in the professional workplace environment. Under the Fourth Amendment, employees are afforded privacy protections; however, if the existence of misconduct or a crime has been committed, employers are obligated and warranted to conduct legal searches and seizures of possessions of/on the employee(s) that are related to the investigation in question.
In this case Dr. Ortega, he took advantage of the residents in the hospital by illegally forced residents for financial contributions to purchase an Apple II computer for work usage; misled Executive Director of the hospital, Dr.Dennis O’Connor that the Apple II computer was a donation; committed sexual misconduct of two female hospital employees; and allegedly disciplined a hospital resident without probable cause (O’Connor v. Ortega, 1987).
In the modern society technological advances have changed the way people communicate in both the personal and professional environment. Many corporations or employers realize the advanced technological development of digital devices can enhance office productivity, operational efficiency, workflow, and communications convenience for the workplace.
Therefore, many companies permit employees use company-owned electronic resources (e.g., computers, Internet, cellular phones, printers, emails and pagers) for personal use as stipulated in their AUPs. In addition, numerous companies have also revamped company AUPs to include permissive use of BYODs. Technological innovations (i.e., BYODs) such as smartphones, PDAs, iPhones, and iPads, can also increase office productivity and operational efficiency as indicated in prior writings; however, both companyowned devices and BYODs appear to have blurred the lines of employees’ Reasonable Expectation of Privacy, and could lead to Unreasonable claims of Expectation of Privacy in the eyes of the court. “Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable” (O’Connor v. Ortega, 1987).
On the one hand, this technological hybrid-integration in the workplace that allows employees to use company-owned devices and BYODs in the professional environment could increase operational productivity, efficiency, and convenience. One the other hand, it created a phenomenon and/or dilemma for courts to decipher the balance between satisfying the employees’ Fourth Amendment protection rights and employer’s obligations to conduct standardized investigations without violating the employee’s Reasonable Expectation of Privacy.
According to O’Connor v. Ortega (1987): In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee’s legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.
The O’Connor v. Ortega (1987) court ruling also concluded “that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness”—in favor of employers who are obligated and within
legal means to conduct noninvestigatory and investigatory practices on incidents involving employees suspected of misconduct or crime (i.e., probable cause) that may have occurred, without violating the Fourth Amendment privacy protections of employees in the workplace.
As stated earlier, cases involving privacy protection matters in the workplace are taken on a case-by-case basis. The commingling of personal and professional files, communications, and so forth on company-owned electronic devices and/or BYODs has created confusion and/or the misperception that employees who commit misconduct or crime such as storing and/or viewing child pornography contents on such digital or electronic devices can hide under the Fourth Amendment umbrella protection. The O’Connor v. Ortega case introduced a new perspective pertaining to an employee’s Expectation of Privacy afforded under the Fourth Amendment to the U.S. Constitution in the workplace—defining the what factors are considered Unreasonable vs. Reasonable.