The disparity between public and private sector employee privacy protections: A call for legitimate privacy rights for private sector workers

American Business Law Journal

Volumn 33, Issue 1, 1995, Pages 51-90

  Pincus, Laura B ^a   Trotter, Clayton ^a  

^a NONE

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EID: 84995179108     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1995.tb00260.x     Document Type: Article

References (229)

1. Comment, The Right to Privacy in Nineteenth Century America, 94 HARV. L. REV. 1892, 1909 (1981) (citing Edward L. Godkin, Libel and Its Legal Remedy, 12 J. SOC. SCI. 69, 80 (1880)).
2. Comment, The Right to Privacy in Nineteenth Century America, 94 HARV. L. REV. 1892, 1909 (1981) (citing Edward L. Godkin, Libel and Its Legal Remedy, 12 J. SOC. SCI. 69, 80 (1880)).
3. For clarity of understanding and usage, the authors accept and use herein Alan Westin's concise definition of privacy: "Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." ALAN WESTIN, PRIVACY AND FREEDOM 7 (1967).
4. ALEKSANDR SOLZHENITSYN, THE CANCER WARD 221 (1968).
5. Louis D. Brandeis & Samual D. Warren, The Right to Privacy, 4 HARV. L. REV. 193 (1890). Brandeis was continually concerned with the prospect of new technology allowing or even inducing greater personal invasions. He considered personal privacy "the most comprehensive of all rights" and the right most cherished by citizens of a free nation. U.S. PRIVACY COUNCIL AND COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, PRIVACY LAW IN THE UNITED STATES: FAILING TO MAKE THE GRADE i (June 1991) (available from CPSR, 666 Pennsylvania Ave., Washington, D.C. 20003).
6. Lois D. Brandeis & Samual D. Warren, The Right to Privacy, 4 HARV. L. REV. 193 (1890). Brandeis was continually concerned with the prospect of new technology allowing or even inducing greater personal invasions. He considered personal privacy "the most comprehensive of all rights" and the right most cherished by citizens of a free nation. U.S. PRIVACY COUNCIL AND COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, PRIVACY LAW IN THE UNITED STATES: FAILING TO MAKE THE GRADE i (June 1991) (available from CPSR, 666 Pennsylvania Ave., Washington, D.C. 20003).
7. Richard Mason, Four Ethical Issues of The Information Age, MIS Q., Mar. 1986, at 5.
8. Gary Murg & Marilyn Maledon, Privacy Legislation - Implications for Employers, 3 EMP. REL. L.J. 168 (1977).
9. Id.
10. David S. Hames & Nicki Dierson, The Common Law Right to Privacy, 42 LAB. L.J. 757 (1991). See also Thomas E. Reinert, Jr., Federal Protection of Employment Record Privacy, 18 HARV. J. LEG. 207 (1981).
11. David S. Hames & Nicki Dierson, The Common Law Right to Privacy, 42 LAB. L.J. 757 (1991). See also Thomas E. Reinert, Jr., Federal Protection of Employment Record Privacy, 18 HARV. J. LEG. 207 (1981).
12. Ann M. O'Neill, Legal Issues Presented by Hair Follicle Testing, EMP. REL. TODAY 411 (Win. 1991/92).
13. The Privacy for Workers and Consumers Act: Hearings before the Senate Comm. on Labor and Human Resources, Subcomm. on Employment and Productivity, 103d Cong., 1st Sess. 3 (1993) [hereinafter PWCA Hearings].
14. Charles Piller, Bosses with X-Ray Eyes, MACWORLD, July 1993, at 2 (Special Report on Electronic Privacy, Workplace and Consumer Privacy Under Siege).
15. Id. at 1.
16. Id. at 2, 6; 9TO5, THE PRIVACY FOR CONSUMERS AND WORKERS ACT 1 (undated publication, available from 9to5, 250 10th St., Atlanta, GA 30309).
17. Id. at 2, 6; 9TO5, THE PRIVACY FOR CONSUMERS AND WORKERS ACT 1 (undated publication, available from 9to5, 250 10th St., Atlanta, GA 30309).
18. PWCA Hearings, supra note 10, at 7.
19. As the Constitution protects only against State action, private sector employees are not subject to Fourth Amendment protection from unreasonable searches and seizures. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 618 (3d Cir. 1992); Wagner v. Metropolitan Nashville Airport Auth., 772 F.2d 227, 230 (6th Cir. 1985); United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979) (en banc); Booth v. McDonnell Douglas Truck Services, Inc., 585 A.2d 24, 39, appeal denied, 597 A.2d 1150 (Pa. 1991).
20. Among these are the freedom of speech, beliefs, and associations, the right to due process of law, the right to not testify against oneself, and the protection against unreasonable searches and seizures.
21. For a more complete discussion of the state action requirement, see Thomas Lewis, The Meaning of State Action, 60 COLUM. L. REV. 1083 (1960).
22. In addition, judges have developed case law that specifically affords individuals a constitutional right to privacy. Roe v. Wade, 410 U.S. 113, 154-64 (1973); Doe v. Taylor Indep. School Dist., 15 F.3d 443 (5th Cir. 1994); Walters v. Webre, 88 B.R. 242, 245 (9th Cir. 1988); Hoffman v. United States, 767 F.2d 1431, 1434-35 (9th Cir. 1985). This "right to privacy," while vague in some cases, has slowly been expanded by the courts to include such areas as sexual intercourse, child-bearing and rearing, affinity orientation, and other personal realms if the intrusion is made by the State. Thorne v. City of El Segundo, 726 F.2d 459, 468-72 (9th Cir. 1983) (investigation regarding police officer applicant's sexual involvement with a married man was found to violate individual's right to privacy); Greenberg v. Kimmelman, 494 A.2d 294 (N.J. 1985) (right to privacy in marriage and familial associations); In re Quinlan, 355 A.2d 647 (N.J. 1976) (right to privacy in refusal of medical treatment); State v. Saunders, 381 A.2d 333 (N.J. 1977) (right to privacy in consensual adult sexual relations). But see Hedge v. County of Tippecanoe, 890 F.2d 4, 7 (7th Cir. 1989) (court recognized a confidentiality strand in the constitutional right to privacy but found that case law had not advanced to the stage at which there was a clearly established constitutional right to be free from employment questions regarding sexual history). Courts are more apt to rely on clearly established and articulated state common, statutory, or constitutional law in finding a right of privacy. See, e.g., Borse v. Piece Goods Shop, 963 F.2d at 620, 623 n.12 (finding a common law right to privacy in Pennsylvania which precludes an employer from requiring employees to furnish urine samples as part of a drug prevention program); Sanders v. Parker Drilling Co., 911 F.2d 191, 195 n.3 (9th Cir. 1990) (applying Alaska constitutional right to privacy).
23. See infra notes 60-112 and accompanying text.
24. CONN. GEN. STAT. ANN. § 31-128f (West 1987).
25. See also MASS. ANN. LAWS ch. 66A, §§ 1-3, ch. 214, § 3B (Law. Co-op. 1987); MINN. STAT. ANN. §§ 13.02-.09 (West 1988); OHIO REV. CODE ANN. §§ 1347.01-.10, 1347.99 (Baldwin 1993); UTAH CODE ANN. §§ 63-50-1 to -10 (1993); VA. CODE ANN. §§ 2.1-377 to -386 (Michie 1987).
26. While some state constitutions recognize a right to privacy, e.g. ALASKA CONST. art. I, § 22; ARIZ. CONST. art. II, § 8; CAL. CONST. art. I, § 1; WASH. CONST. art. I, § 7, courts have held that many of these provisions do not protect against private sector invasions. See, e.g., Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). See also IRA M. SHEPARD, WORKPLACE PRIVACY: EMPLOYEE TESTING, SURVEILLANCE, WRONGFUL DISCHARGE, AND OTHER AREAS OF VULNERABILITY 31 (2d ed. 1989).
27. While some state constitutions recognize a right to privacy, e.g. ALASKA CONST. art. I, § 22; ARIZ. CONST. art. II, § 8; CAL. CONST. art. I, § 1; WASH. CONST. art. I, § 7, courts have held that many of these provisions do not protect against private sector invasions. See, e.g., Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). See also IRA M. SHEPARD, WORKPLACE PRIVACY: EMPLOYEE TESTING, SURVEILLANCE, WRONGFUL DISCHARGE, AND OTHER AREAS OF VULNERABILITY 31 (2d ed. 1989).
28. While some state constitutions recognize a right to privacy, e.g. ALASKA CONST. art. I, § 22; ARIZ. CONST. art. II, § 8; CAL. CONST. art. I, § 1; WASH. CONST. art. I, § 7, courts have held that many of these provisions do not protect against private sector invasions. See, e.g., Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). See also IRA M. SHEPARD, WORKPLACE PRIVACY: EMPLOYEE TESTING, SURVEILLANCE, WRONGFUL DISCHARGE, AND OTHER AREAS OF VULNERABILITY 31 (2d ed. 1989).
29. Not only is private sector legislation warranted, but it has been forecasted since as early as the mid-1970's. See Murg & Maledon, supra note 6;
30. Schien, Privacy and Personnel, A Time for Action, 55 PERS. J. 604 (1976).
31. KURT H. DECKER, EMPLOYEE PRIVACY LAW AND PRACTICE 12-13 (1987).
32. Louis HARRIS AND ASSOCIATES, HEALTH CARE INFORMATION PRIVACY: A SURVEY OF THE PUBLIC AND LEADERS, STUDY NO. 934009, 28 (1993).
33. Id.
34. Roe v. Wade, 410 U.S. 113, 154-64 (1973); Walters v. Webre, 88 B.R. 242, 245 (9th Cir. 1988) (identifying a fundamental right as "one based expressly on the terms of the Constitution or necessarily implied therefrom, for example, privacy"); Hoffman v. United States, 767 F.2d 1431, 1434-35 (9th Cir. 1985). See also Planned Parenthood of Southeastern Pennsylvania, 112 S. Ct. 2791, 2846 (1992); Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
35. See infra notes 183-96 and accompanying text.
36. For a general discussion of the job-relatedness of HIV, see Laura B. Pincus, The Americans With Disabilities Act: Employers' New Responsibilities to HIV-Positive Employees, 21 HOFSTRA L. REV. 561 (1993).
37. Samuel J. Bresler & Rebecca Thacker, Four-Point Plan Helps Solve Harassment Problems, HRMAGAZINE, May 1993, at 117; Ira M. Shepard & Chris Mason, The Unwanted Advance, BUS. L. TODAY, Jan./Feb. 1993, at 4, 7; Elizabeth R. Koller, Sexual Harassment Laws: Have We Gone Too Far? 4 (unpublished manuscript on file with the authors).
38. Samuel J. Bresler & Rebecca Thacker, Four-Point Plan Helps Solve Harassment Problems, HRMAGAZINE, May 1993, at 117; Ira M. Shepard & Chris Mason, The Unwanted Advance, BUS. L. TODAY, Jan./Feb. 1993, at 4, 7; Elizabeth R. Koller, Sexual Harassment Laws: Have We Gone Too Far? 4 (unpublished manuscript on file with the authors).
39. Samuel J. Bresler & Rebecca Thacker, Four-Point Plan Helps Solve Harassment Problems, HRMAGAZINE, May 1993, at 117; Ira M. Shepard & Chris Mason, The Unwanted Advance, BUS. L. TODAY, Jan./Feb. 1993, at 4, 7; Elizabeth R. Koller, Sexual Harassment Laws: Have We Gone Too Far? 4 (unpublished manuscript on file with the authors).
40. See Piller, supra note 11, at 4.
41. See Hames & Dierson, supra note 8. See also Reinert, supra note 8.
42. Brian R. Bawden, Privacy and Confidentiality in The Workplace 1 (November 18, 1993) (unpublished manuscript on file with the authors).
43. Id. at 2.
44. U.S. PRIVACY COUNCIL AND COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, supra note 4, at 1.
45. Remember Big Brother? Now; He's A Company Man, N.Y. TIMES, Mar 31, 1991, at E7.
46. OFFICE OF TECHNOLOGY ASSESSMENT, THE ELECTRONICS SUPERVISOR: NEW TECHNOLOGY, NEW TENSIONS 2 (1987).
47. Caroline Cooney, Who's Watching the Workplace?, 35 SECURITY MANAGEMENT 26, 26 (1991).
48. Id.
49. Id.
50. These states include Alaska (ALASKA STAT. § 23.10.037(a) (1986)), Connecticut (CONN. GEN. STAT. ANN. § 31-51g (West 1987)), Delaware (DEL. CODE ANN. tit. 19, § 704 (19861) District of Columbia (prohibited as a condition of employment, D.C. CODE ANN. § 36 801-803 (1981)), Hawaii (HAW. REV. STAT. § 378-21 (1985)), Idaho (prohibited in private sector, IDAHO CODE § 44-903 (1973)), Iowa (may not require as a condition of employment, IOWA CODE ANN. § 730-4 (West 1987)), Maine (ME. REV. STAT. ANN. tit. 32, § 7154 (West 1979)), Massachusetts (may not require as a condition of employment, MASS. ANN. LAWS, ch. 149, § 19B(2) (Law. Co-op. 1987)), Montana (may not require as a condition of employment, MONT. CODE ANN. § 39-2-304 (1987)), New Jersey (N.J. STAT. ANN. § 2C:40A-1 (West 1987)), New York (N.Y. LAB. LAW § 733 (McKinney 1987)), Pennnsylvania (PA. CONS. STAT. ANN. § 7321 (1987)), Rhode Island (R.I. GEN. LAWS §§ 28-6.1-1 to 28-6.1-3 (1987)), Vermont (VT. STAT. ANN. tit. 21, § 494 (1993)), Washington (WASH. REV. CODE ANN. § 49.44.120 (West 1987)), and West Virginia (W. VA. CODE § 21-5-5a (1983)).
51. The following states prohibit mandatory polygraph examinations: Alabama (ALA. CODE § 34 25-4 (1994)), Arkansas (ARK. CODE ANN. § 17-32-211 (Michie 1987)), Louisiana (LA. REV. STAT. ANN. tit. 37, § 36A:2835 (West 1993)), Maryland (MD. LABOR & EMP'T CODE ANN. § 30-702 (1991)), Michigan (MICH. COMP. LAWS ANN. § 37.201 (West 1987)), Minnesota (MINN. STAT. ANN. § 181.75(1) (West 1987)), Mississippi (MISS. CODE ANN. § 73-29-31 (1980)), Oklahoma (OKLA. STAT. ANN. tit. 59, § 1455 (West 1994)), South Carolina (S.C. CODE ANN. § 40-53-180 (Law. Co-op. 1972)), and Texas (TEX. REV. CIV. STAT. ANN. art. 4413(29cc) (West 1987)).
52. 5 U.S.C. § 552 (1988). While the purpose of the FOIA is to allow for more complete disclosure of public information within the control of the federal government to the public, the FOIA also protects public sector employees in that the government must delete formation from the records provided if the disclosure of that information would constitute an excessive invasion of the subject's privacy Id. § 552(a)(2). Where a named subject is also a public sector employer, he or she is therefore protected.
53. Pub. L. No. 91-508, § 601, 84 Stat. 1127 (1970) (codified at 15 U.S.C. §§1681-1681t (1988)) See infra notes 82-90 and accompanying text.
54. 5 U.S.C. § 552a (1988); see infra notes 126-46 and accompanying text.
55. Murg & Maledon, supra note 6, at 172.
56. Pub. L. No 93-579, § 5(b)(2), 88 Stat. 1906 (1974).
57. There have been bills proposed both in the House (e.g., H.R. 1218 102d Cong., 1st Sess. (1991)) and the Senate (e.g., S. 516, 102d Cong., 1st Sess. (1991)), relating to privacy protection. H.R. 1218, for example, would have protected workers against surreptitious or electronic monitoring and required notification to a prospective or current worker of the existing forms of monitoring to which she or he might be subject. H.R. 1218, 102d Cong., 1st Sess. § 3 (1991). The bill provided that employees would have access to the information collected and maintained, id. § 4, and created a private right of action to harmed employees, id. § 7.
58. See Robert Boehmer & Todd Palmer, The 1992 EC Data Protection Proposal: An Examination of Its Implications for U.S. Business and U.S. Privacy Law, 31 AM. BUS. L.J. 265 (1993).
59. While the German State of Hesse passed one of the first data protection laws in 1970, a nationwide data protection law was not enacted in Germany until 1978. WAYNE MADSEN, HANDBOOK OF PERSONAL DATA PROTECTION 24 (1992).
60. Id..
61. GESETZ ZUM SCHUTZ VOR MISSBRAUCH PERSONENBEZOGENER DATEN BEI DER DATENVERARBEITUNG OR BUDESDATENSCHUTZGESETZ - BDSG, translated in LAW ON THE PROTECTION AGAINST MISUSE OF PERSONAL DATA IN DATA PROCESSING, GESETZ ZUM SCHUTZ VOR MISSBRAUCH PERSONENBEZOGENER DATEN (Ursula Gleiss ed. & trans., 1977). The 1991 Amendments to the Act were called GESETZ ZUR FORTENWICKLUNG DER DATEN VERARBEITUNG UND DES DATENSCHUTZES.
62. MADSEN, supra note 50, at 35-37.
63. ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, RECOMMENDATION OF THE COUNCIL CONCERNING GUIDELINES GOVERNING THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, O.E.C.D. Doc. C(80) 58 final (Oct. 1, 1980), reprinted in 20 I.L.M. 422 (1981) [hereinafter OECD GUIDELINES]. For a more complete discussion of the Guidelines, see Boehmer & Palmer, supra, note 49, at 273-76.
64. ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, RECOMMENDATION OF THE COUNCIL CONCERNING GUIDELINES GOVERNING THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, O.E.C.D. Doc. C(80) 58 final (Oct. 1, 1980), reprinted in 20 I.L.M. 422 (1981) [hereinafter OECD GUIDELINES]. For a more complete discussion of the Guidelines, see Boehmer & Palmer, supra, note 49, at 273-76.
65. COUNCIL OF EUROPE, CONVENTION FOR THE PROTECTION OF INDIVIDUALS WITH REGARD TO AUTOMATIC PROCESSING OF PERSONAL DATA, Jan. 28, 1981, EUR. T.S. No. 108, reprinted in 20 I.L.M. 317 (1981) [hereinafter COE CONVENTION]. For a more complete discussion of the COE Convention, see Boehmer & Palmer, supra note 49, at 276-79.
66. COUNCIL OF EUROPE, CONVENTION FOR THE PROTECTION OF INDIVIDUALS WITH REGARD TO AUTOMATIC PROCESSING OF PERSONAL DATA, Jan. 28, 1981, EUR. T.S. No. 108, reprinted in 20 I.L.M. 317 (1981) [hereinafter COE CONVENTION]. For a more complete discussion of the COE Convention, see Boehmer & Palmer, supra note 49, at 276-79.
67. DIRECTIVE ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, COM(92)422 final 1992. See also corrigendum issued Oct. 28, 1992; Common Position (EC) No. 1/95, 2/20/95, Official Journal (EC), Vol. 38 (4,13/95) [hereinafter 1992 DIRECTIVE]. One of the primary objectives of the Directive is to harmonize national laws and to establish a community standard of privacy protection. See Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Privacy Rights?, 55 FED. COMM. L.J. 195, 238 (1992).
68. DIRECTIVE ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, COM(92)422 final 1992. See also corrigendum issued Oct. 28, 1992; Common Position (EC) No. 1/95, 2/20/95, Official Journal (EC), Vol. 38 (4,13/95) [hereinafter 1992 DIRECTIVE]. One of the primary objectives of the Directive is to harmonize national laws and to establish a community standard of privacy protection. See Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Privacy Rights?, 55 FED. COMM. L.J. 195, 238 (1992).
69. DIRECTIVE ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, COM(92)422 final 1992. See also corrigendum issued Oct. 28, 1992; Common Position (EC) No. 1/95, 2/20/95, Official Journal (EC), Vol. 38 (4,13/95) [hereinafter 1992 DIRECTIVE]. One of the primary objectives of the Directive is to harmonize national laws and to establish a community standard of privacy protection. See Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Privacy Rights?, 55 FED. COMM. L.J. 195, 238 (1992).
70. DIRECTIVE ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, COM(92)422 final 1992. See also corrigendum issued Oct. 28, 1992; Common Position (EC) No. 1/95, 2/20/95, Official Journal (EC), Vol. 38 (4,13/95) [hereinafter 1992 DIRECTIVE]. One of the primary objectives of the Directive is to harmonize national laws and to establish a community standard of privacy protection. See Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Privacy Rights?, 55 FED. COMM. L.J. 195, 238 (1992).
71. See infra notes 183-96 and accompanying text.
72. 1992 DIRECTIVE, supra note 56, art. 30, §1.
73. Spiros Simitis, New Trends in National and International Data Protection Law, in RECENT DEVELOPMENTS IN DATA PRIVACY LAW 17 (J. Dumortier ed., 1992).
74. See supra notes 15-26 and accompanying text.
75. SHEPARD, supra note 22, at 26.
76. Id. at 26-30.
77. The tort claim of defamation does not adequately protect the privacy interests of the employee as that tort requires proof that the information transmitted or disclosed be false. RESTATEMENT (SECOND) OF TORTS § 558 (1977). The concern of this article is access to or disclosure of any personal information of the employee, whether it be false or true, as long as it is personal. In addition, defamation requires publication to a third party in order for it to be actionable. Houston Belt and Terminal Rwy. Co. v. Wherry, 548 S.W.2d 743, 751 (Tex. App. 1976), cert. denied, 434 U.S. 962 (1977); Montgomery Ward and Co. v. Peaster, 178 S.W.2d 302, 306 (Tex. App. 1944). The concern of this article is not only with publication but mere knowledge by the employer of an employee's private information. The torts of public disclosure of private facts and portrayal of an individual in a false light are inadequate for similar reasons. As public employees are protected against disclosure of personal information without the additional requirement that such disclosure cause damage to that individual's reputation, see infra notes 116-24 and accompanying text, so too should private sector employees be granted the same protection.
78. Floyd v. Park Cities People, Inc., 685 S.W.2d 96, 97 (Tex. App. 1985); Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App. 1982), RESTATEMENT (SECOND) OF TORTS, supra note 63, § 652B.
79. Miller v. Motorola, 560 N.E.2d 900 (Ill. 1990); Eddy v. Brown, 715 P.2d 74 (Okla. 1986); Ellenberg v. Pinkerton's, Inc., 202 S.E.2d 701 (Ga. 1973).
80. Birnbaum v. United States, 588 F.2d 319, 323 (2d Cir. 1978). C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tx. App. 1991); Boyles v. Kerr, 806 S.W.2d 255, 259 n.2 (Tex. App. 1991); Wilkerson v. Eaton Corp., 1994 WL 77719 (Ohio App. 8 Dist. 1994). In one case, Rulon-Miller v. International Business Machines Corp, 162 Cal. App. 3d 241 (1984), an IBM employee was discharged because she continued dating a previous IBM employee who was currently working for a competitor after she was told to terminate her relationship due to the perceived conflict of interest. Id. at 243-44. Rulon-Miller, the employee, successfully sought damages based on claims of wrongful discharge and intentional infliction of emotional distress. Id. at 247. A jury awarded her compensatory and punitive damages against IBM; this verdict was upheld on appeal. Id. at 255. In this case, however, the acts of the employer were so egregious as to justify damages for wrongful termination.
81. Cort v. Bristol-Myers Co., 431 N.E.2d 908 (Me. 1982) (employer held not in violation of public policy for discharge of employees for their refusal to provide information on a questionnaire); Texas Dept. of Mental Health v. Texas State Employees Union, 708 S.W.2d 498, 504 (Tex. App. 1986); Penokie v. Michigan Tech. Univ., 287 N.W.2d 304 (Mich. App. 1979). On the other hand, those intrusions that are considered in violation of public policy which result in termination of an employee may give rise to a claim for wrongful discharge. Because the public policy exception to employment at will is applied on a state-by-state basis, such decisions vary depending upon the jurisdiction of the termination. For instance, in Roe v. Quality Transportation Services, 838 P.2d 128 (Wash. 1992), the court held that the common law tort of invasion of privacy (intrusion into seclusion) was not a clear mandate of public policy so as to prohibit a private employer from terminating an employee for refusal to submit to a drug test. But see Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 19 (N.J. 1992), in which the court held that drug testing by private employers could be an invasion of privacy sufficient to breach public policy for purpose of determining whether an at-will employee has a claim for wrongful discharge. See also Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1131-33 (Alaska 1989) (court held that, while Alaska's constitutional privacy protection is inapplicable to private employee's claim, such can form the basis of public policy); Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111, 117 (W. Va. 1984) (contrary to public policy for an employer to require that an employee submit to a polygraph test as a condition of employment).
82. In Young v. Jackson, 572 So. 2d 378 (Miss. 1990), the court held that it did not constitute an unwarranted invasion of privacy when a co-worker disclosed the fact of employee's partial hysterectomy. While the court admitted that such a disclosure would be highly offensive to a reasonable person, it held that the co-worker had a right to disclose the information based on a qualified privilege concerning the possibility that the procedure had been necessary as a result of radiation exposure within the work place. In Leggett v. First Interstate Bank of Oregon, 739 P.2d 1083, 1086 (Or. 1987), the court held that privilege applies only if the information is published to third parties and not if the employer is merely gathering information.
83. 533 P.2d 343 (Or. 1975).
84. Id. at 346-47. 71 502 A.2d 1101 (Md. Ct. Spec. App. 1986).
85. Id. at 1116-17.
86. Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719, 723-24 (Tex. App. 1975).
87. Speer v. Ohio Dept. of Rehabilitation and Correction, 624 N.E.2d 251 (Ohio 1993) (employee's consent to search did not authorize surveillance of employee from bathroom ceiling).
88. The court in State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974), explained the disparity in bargaining power between an employee and employer in connection with a request that the employee submit to a polygraph examination as follows: Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. Id. at 699. See also Burk v. K-Mart Corporation, 770 P.2d 24, 30 (Ok. 1989); National Consultants, Inc. v. Burt, 366 S.E.2d 344, 350, cert. vacated, 374 S.E.2d 532 (Ga. 1988); Rash v. Toccoa Clinic Med. Assn., 320 S.E.2d 170 (Ga. 1984); Anderson v. Savin Corporation, 254 Cal. Rptr. 627, 631 (Cal. App. 1988); Wallis v. Superior Court, 207 Cal. Rptr. 123 (Cal. App. 1984). But see Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 953 (1984), in which Professor Epstein argues that the contract at will works to the mutual benefit of both parties as long as the power of each party is measured at the time of the contract's formation and not at the time of dispute. For more complete discussions of this debate, see also Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967); Mark M. Hager, The Emperor's Clothes Are Not Efficient- Posner's Jurisprudence of Class, 41 AM. U. L. REV. 7 (1991); Karl E. Klare, Workplace Democracy and Market Deconstruction: An Agenda of Legal Reform, 38 CATH. U. L. REV. 1 (1988).
89. The court in State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974), explained the disparity in bargaining power between an employee and employer in connection with a request that the employee submit to a polygraph examination as follows: Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. Id. at 699. See also Burk v. K-Mart Corporation, 770 P.2d 24, 30 (Ok. 1989); National Consultants, Inc. v. Burt, 366 S.E.2d 344, 350, cert. vacated, 374 S.E.2d 532 (Ga. 1988); Rash v. Toccoa Clinic Med. Assn., 320 S.E.2d 170 (Ga. 1984); Anderson v. Savin Corporation, 254 Cal. Rptr. 627, 631 (Cal. App. 1988); Wallis v. Superior Court, 207 Cal. Rptr. 123 (Cal. App. 1984). But see Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 953 (1984), in which Professor Epstein argues that the contract at will works to the mutual benefit of both parties as long as the power of each party is measured at the time of the contract's formation and not at the time of dispute. For more complete discussions of this debate, see also Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967); Mark M. Hager, The Emperor's Clothes Are Not Efficient- Posner's Jurisprudence of Class, 41 AM. U. L. REV. 7 (1991); Karl E. Klare, Workplace Democracy and Market Deconstruction: An Agenda of Legal Reform, 38 CATH. U. L. REV. 1 (1988).
90. The court in State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974), explained the disparity in bargaining power between an employee and employer in connection with a request that the employee submit to a polygraph examination as follows: Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. Id. at 699. See also Burk v. K-Mart Corporation, 770 P.2d 24, 30 (Ok. 1989); National Consultants, Inc. v. Burt, 366 S.E.2d 344, 350, cert. vacated, 374 S.E.2d 532 (Ga. 1988); Rash v. Toccoa Clinic Med. Assn., 320 S.E.2d 170 (Ga. 1984); Anderson v. Savin Corporation, 254 Cal. Rptr. 627, 631 (Cal. App. 1988); Wallis v. Superior Court, 207 Cal. Rptr. 123 (Cal. App. 1984). But see Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 953 (1984), in which Professor Epstein argues that the contract at will works to the mutual benefit of both parties as long as the power of each party is measured at the time of the contract's formation and not at the time of dispute. For more complete discussions of this debate, see also Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967); Mark M. Hager, The Emperor's Clothes Are Not Efficient- Posner's Jurisprudence of Class, 41 AM. U. L. REV. 7 (1991); Karl E. Klare, Workplace Democracy and Market Deconstruction: An Agenda of Legal Reform, 38 CATH. U. L. REV. 1 (1988).
91. The court in State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974), explained the disparity in bargaining power between an employee and employer in connection with a request that the employee submit to a polygraph examination as follows: Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. Id. at 699. See also Burk v. K-Mart Corporation, 770 P.2d 24, 30 (Ok. 1989); National Consultants, Inc. v. Burt, 366 S.E.2d 344, 350, cert. vacated, 374 S.E.2d 532 (Ga. 1988); Rash v. Toccoa Clinic Med. Assn., 320 S.E.2d 170 (Ga. 1984); Anderson v. Savin Corporation, 254 Cal. Rptr. 627, 631 (Cal. App. 1988); Wallis v. Superior Court, 207 Cal. Rptr. 123 (Cal. App. 1984). But see Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 953 (1984), in which Professor Epstein argues that the contract at will works to the mutual benefit of both parties as long as the power of each party is measured at the time of the contract's formation and not at the time of dispute. For more complete discussions of this debate, see also Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967); Mark M. Hager, The Emperor's Clothes Are Not Efficient- Posner's Jurisprudence of Class, 41 AM. U. L. REV. 7 (1991); Karl E. Klare, Workplace Democracy and Market Deconstruction: An Agenda of Legal Reform, 38 CATH. U. L. REV. 1 (1988).
92. The court in State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974), explained the disparity in bargaining power between an employee and employer in connection with a request that the employee submit to a polygraph examination as follows: Nor is there any assurance of true voluntariness [in taking a polygraph examination] for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. Id. at 699. See also Burk v. K-Mart Corporation, 770 P.2d 24, 30 (Ok. 1989); National Consultants, Inc. v. Burt, 366 S.E.2d 344, 350, cert. vacated, 374 S.E.2d 532 (Ga. 1988); Rash v. Toccoa Clinic Med. Assn., 320 S.E.2d 170 (Ga. 1984); Anderson v. Savin Corporation, 254 Cal. Rptr. 627, 631 (Cal. App. 1988); Wallis v. Superior Court, 207 Cal. Rptr. 123 (Cal. App. 1984). But see Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 953 (1984), in which Professor Epstein argues that the contract at will works to the mutual benefit of both parties as long as the power of each party is measured at the time of the contract's formation and not at the time of dispute. For more complete discussions of this debate, see also Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967); Mark M. Hager, The Emperor's Clothes Are Not Efficient- Posner's Jurisprudence of Class, 41 AM. U. L. REV. 7 (1991); Karl E. Klare, Workplace Democracy and Market Deconstruction: An Agenda of Legal Reform, 38 CATH. U. L. REV. 1 (1988).
93. In Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497 (Tex. 1989), the plaintiff/ employee argued that her consent to a drug testing requirement would be ineffective because, if she did not consent to the testing, she would lose her job, which she could not afford to do. The court rejected her argument. Id. at 500. But see Community Distributors, Inc., in which the court addressed the issue in exactly opposite terms in connection with polygraph examinations. 317 A.2d at 699.
94. Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 253 (Tex. 1993) (drug testing of private sector employees does not amount to a tortious invasion of privacy where there is consent); Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497, 500 (Tex. 1989); Ballaron v. Equitable Shipyards, 521 S.2d 481 (La. 1988) (employer's requirements that employee sign polygraph examiner's consent forms did not constitute actionable invasion of privacy). But see cases where state constitutional privacy protections apply, such as Soroka v. Dayton Hudson Corp., 18 CaI. App. 4th 1200, 1209 (1993). In that case, the court, in determining whether the employees could consent to a psychological screening test that allegedly invaded their privacy, noted that, "[s]imply put, applicants for jobs . . . have a choice; they may consent to the limited invasion of their privacy resulting from the testing, or may decline both the test and the conditional offer of employment." Id. (citing Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 204 (Cal. App. 1990)). However, the court concluded that, based on California's constitutional guarantee of privacy rights to all citizens, the psychological screening was not a justified invasion of employees' or applicants' rights; see also Luck v. Southern Pacific Transp. Co., 267 Cal. Rptr. 618 (Cal. App. 1990) (employer's termination of employee for failure to submit to drug urinalysis constituted a violation of employee's right to privacy).
95. Lisa Brunn, Privacy and The Employment Relationship, 24 HOUS. L. REV. 389, 401 (1988).
96. Sowards v. Norbar, Inc., 605 N.E.2d 468 (Ohio 1992); Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 88 (Mich. 1980). But see Martin v. Capital Cities, 511 A.2d 830 (Pa. Super. 1986) (handbook is not considered a contract unless the employer states that it is legally binding); Gates v. Life of Montana, 638 P.2d 1063 (Mont. 1982) (dictum) (handbook is not a contract but instead a unilateral employer statement).
97. PRIVACY PROTECTION STUDY COMMISSION, PERSONAL PRIVACY IN AN INFORMATION SOCIETY: THE REPORT OF THE PRIVACY PROTECTION STUDY COMMISSION 225 (1977). The Commission was established pursuant to the Privacy Act, Pub. L. No. 93-579, § 5(b)(2), 93rd Cong., 2d Sess., 88 Stat. 1906 (1974).
98. COLIN J. BENNETT, REGULATING PRIVACY: DATA PROTECTION AND PUBLIC POLICY IN EUROPE AND THE UNITED STATES 67 (1992) (citing ADVISORY COMMITTEE ON AUTOMATED PERSONAL DATA SYSTEMS OF THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, U.S. HEW, RECORDS, COMPUTERS, AND THE RIGHTS OF CITIZENS 37 (1973)).
99. COLIN J. BENNETT, REGULATING PRIVACY: DATA PROTECTION AND PUBLIC POLICY IN EUROPE AND THE UNITED STATES 67 (1992) (citing ADVISORY COMMITTEE ON AUTOMATED PERSONAL DATA SYSTEMS OF THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, U.S. HEW, RECORDS, COMPUTERS, AND THE RIGHTS OF CITIZENS 37 (1973)).
100. Pub. L. No. 91-508, § 601, 84 Stat. 1127 (1970).
101. DECKER, supra note 24, at 46.
102. Id.
103. 15 U.S.C. § 1681b (1988).
104. Id. § 1681m(a).
105. Id. § 1681g(a)(1)(3).
106. Id. § 1681i(a).
107. Id. § 1681i(b)(c).
108. Id. § 1681i(b)(c).
109. Edward Ottensmeyer, Ethics, Public Policy and Managing Advanced Technologies: The Case of Electronic Surveillance, 10 J. BUS. ETHICS 519 (1991).
110. 18 U.S.C. §§ 2510-2521 (1988).
111. Id. § 2511(2)(d).
112. Id. § 2510(5)(d).
113. Abel v. Bonfanti, 625 F. Supp. 263 (S.D.N.Y. 1985).
114. Ottensmeyer, supra note 91, at 520.
115. Id. at 521.
116. S. 984, 103d Cong., 1st Sess. (1993) [hereinafter PCWA]. The bill was first introduced in 1991 as S. 516 (by Sen. Simon) and in the House of Representatives as H.R. 1218, 102 Cong., 1st Sess. (by Rep. Williams).
117. PCWA, supra note 98, Preamble and § 2(4). The PCWA applied to continuous electronic monitoring and provided that employees shall be notified of the monitoring, regulated periodic or random monitoring, and provided for a review and amendment of surveillance records, as well as specific privacy protections. Id. §§ 3-10.
118. Id. §§ 3, 4, 5, 8, 10.
119. Cooney, supra, note 38, at 30.
120. 29 U.S.C. §§ 2001-09 (1988).
121. Id.
122. Id. § 2002.
123. Id.
124. Id.
125. 29 U.S.C. § 2006(e).
126. Id. § 2006(f).
127. Id. § 2006(a)-(c).
128. Id. § 2006(a).
129. See notes 107-10 and accompanying text.
130. For instance, under the FCRA, the employer must show that there is a legitimate business need for the information, while the Omnibus Crime Control and Safe Streets Act requires only that the information be collected during the ordinary course of business.
131. Charles Piller, Privacy in Peril, MACWORLD, July 1993, at 129.
132. This "quilt-like" method of protection has been criticized to a great extent by privacy scholars. Evan Hendricks, editor of the Privacy Times, explains, "[a]round the world, the U.S. is a laughingstock among privacy experts because we have a law protecting video tape-rental records, but not medical records." Piller, supra note 113, at 129 (Piller was referring to the Video Privacy Protection Act of 1988, 18 U.S.C. §§ 2701-2711 (1988), which, among other protections, limits the access of third parties to personally identifiable information retained by a video tape service provider. Id. §2710(a)(4).) Simon Davies, director of the Australian Privacy Foundation and a member of the Board of Directors of Computer Professionals for Social Responsibility, adds, "[t]he U. S. is an embarrassment to the privacy movement overseas; the U.S. stands alone as an example of what a superpower should not do in privacy." Piller, supra note 113, at 129.
133. U.S. CONST. amend. IV ("The right of the people to be secure in their persons, homes, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .")
134. 5 U.S.C. § 552 (1988).
135. DECKER, supra note 24, at 44.
136. 5 U.S.C. " 552(a)(2)(A)-(C) (1988).
137. Id. § 552(a)(1)-(2).
138. Id. § 552(a)(2).
139. Id. § 552(b)(6).
140. Id. § 552(a)(2).
141. Ludmila Kaniuga-Golad, Federal Legislative Proposals for the Protection of Privacy, 8 FORDHAM URB. L.J. 773, 788 (1979).
142. Id. The FOIA has been applied to protect public sector employees from excessive and unwarranted invasions of their privacy when private sector employees would not have similar protections. Because the FOIA contains a specific exemption from disclosure of information that would constitute an excessive invasion of privacy, 5 U.S.C. § 552(a)(2), public sector employees have a safe harbor in which to bring their claims. Private sector employees have no similar guarantee. In Maynard v. Central Intelligence Agency, 986 F.2d 547, 566 (1st Cir. 1993), the court held that the names of FBI employees could not be disclosed by their employer because the employees' privacy interest outweighed the public's interest in "what government was up to." In Hopkins v. U.S. Dept. of Housing and Urban Development, 929 F.2d 81, 86-88 (2d Cir. 1991), the court held that payroll records of government contractors were exempt from disclosure requirements of the Act because disclosure would constitute a clearly unwarranted invasion of privacy. In a number of other cases, courts have held that unions were not allowed access to the names and addresses of public employees because it would constitute an invasion of their privacy under the FOIA. See Federal Labor Relations Authority v. U.S. Dept. of Defense, Army and Air Force Exchange Service, 984 F.2d 370 (10th Cir. 1993); Federal Labor Relations Authority v. U.S. Dept. of Defense, 977 F.2d 545 (11th Cir. 1992) (court held that public interest side of balance carried little weight and was not sufficient to outweigh demonstrably significant invasion of privacy). Names and addresses were also considered to be beyond a FOIA request, particularly if coupled with personal financial information, in NARFE v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) and Aronson v. HUD, 822 F.2d 182, 186 (1st Cir. 1987).
143. Kaniuga-Golad, supra note 123, at 790.
144. 5 U.S.C. § 552a (1988).
145. Kaniuga-Golad, supra note 123, at 787.
146. The Privacy Protection Study Commission was established by the Act in order to evaluate the effectiveness of extending the requirements of the Act to the private sector. See infra notes 147-55 and accompanying text.
147. 5 U.S.C. § 552a(e)(1) (1988).
148. Id. § 552a(e)(2).
149. Id. § 552a(e)(3).
150. Id. § 552a(d)(1).
151. Id. § 552a(d)(2).
152. 5 U.S.C. § 552a(b).
153. Id. § 552a(b)(3).
154. Id. § 552a(c)(3).
155. Id § 552a(g)(1).
156. Id. § 552a(b)(1)-(11).
157. 5 U.S.C. § 552a(b)(3).
158. Id.
159. Id. § 552a(b).
160. Minnis v. U.S. Dept. of Agriculture, 737 F.2d 784, 786-87 (9th Cir. 1984).
161. Id.
162. 611 F.2d 738, 746 (9th Cir. 1979).
163. Id. at 746; Minnis, 737 F.2d at 786.
164. Patrick Cole, New Challenges to The U.S. Multinational Corporation in The European Economic Community: Data Protection Laws, 17 N.Y.U.J. INT'L L. & POL. 893 (1985)
165. The application of the Privacy Act of 1974 to individual privacy lies in its prohibition of the disclosure of personal information pursuant to the FOIA and the provisions by which the Act allows individuals to examine, rectify, and copy information maintained in their files by the government or federal agency. 5 U.S.C. § 552a (1988).
166. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at 231.
167. United States v. Westinghouse Elec. Corp., 638 F.2d 570, 576 (3d Cir. 1980).
168. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at 34. It has also been suggested that the Commission was under terrific pressure from private sector lobbyists who recommended that the Act not be extended to the private sector. MADSEN, supra note 50, at 107.
169. MADSEN, supra note 50, at 274.
170. Id. at 232-33.
171. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
172. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
173. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
174. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
175. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS.
176. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
177. Courts have held that mere collection of information is not an invasion of privacy, and its internal use by the employer is not subject to privacy rights of the employee because the employee record is considered employer property. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at app. 1, p. 21; Mordechai Mironi, The Confidentiality of Personnel Records: A Legal and Ethical View, 25 LAB. L.J. 270, 288-89 (1974); George Stevens, The Publicity Requirement and the Employee's Right to Privacy, 16 AM. BUS. L.J. 360, 365 (1979). See Saldana v. Wyoming, 846 P.2d 604, 651 (Wyo. 1993) ("[R]etrenchment by the United States Supreme Court and the report of the Privacy Protection Study Commission have made it abundantly clear that the right of privacy will be fully protected only if there is action by the states. It is time to take that step. It is vital to a free society to establish a zone of privacy in which each individual is free from physical and psychological intrusion and has the autonomy to make vital personal decisions." Id. (Urbigkit, J., dissenting)). See also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180 (D. Conn. 1989); Esnor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn. 1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D. Wy. 1987); Peller v. Retail Credit Co., 359 F. Supp. 1235 (N.D. Ga. 1973), aff'd mem., 505 F.2d 733 (5th Cir. 1974); O'Keefe v. Passaic Valley Water Comm., 624 A.2d 578, (N.J. 1993); Cort v. Bristol-Myers, 431 N.E.2d 908, 914 (Mass. 1982). In addition, the former chairman of the Privacy Protection Study Commission, David Linowes, conducted a study which showed that, of the employers questioned, 64% do not have programs that provide employees privacy protection. In addition, 36% of the employers would not create such programs until required to do so by law. Dept. of Labor Hearings on Workplace Privacy, 44 Fed. Reg. 57537 (1979), 44 Fed. Reg. 75755 (1979) (statement of Prof. David Linowes). On the other hand, some of this country's larger firms have exhibited efforts at conformance. These firms include AT&T, Aetna Life & Casualty, Eastman Kodak, and Prudential Insurance. Alan Westin, What Should Be Done about Employee Privacy?, 25 PERS. ADMIN. 27, 30 (1980). See also David Ewing, IBM's Guidelines to Employee Privacy, HARV. BUS. REV., Sept./Oct. 1976, at 82.
178. Murg & Maledon, supra note 6.
179. Privacy Act Amendments of 1991, 137 CONG. REC. H3449-06 (1991).
180. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at 238-41.
181. Id. at 232.
182. Richard Ehlke, The Privacy Act after a Decade, 18 JOHN MARSHALL L. REV. 829, 840 (1985).
183. Id.
184. MADSEN, supra note 50, at 141-42.
185. Id. See, e.g., Individual Privacy Protection Act, H.R. 126, 135 CONG. REC. E402-02 (daily ed. 1989).
186. S. 1735, 103d Cong., 1st Sess. (1993). A similar bill was proposed in the House of Representatives by Illinois Rep. Cardiss Collins. H.R. 135, 103d Cong., 1st Sess. (1993). H.R. 135, however, did not make specific reference to application to the private sector, while it also did not exclude that application. Id. § 6(b)(2). One additional point worth noting is that H.R. 135 stated that the "right to privacy is a personal and fundamental right protected by the Constitution of the United States." Id. § 2(4).
187. Id. § 2(5)(A)-(C).
188. Id. § 6.
189. Privacy International is an independent non-governmental organization established in 1990 with the objective of protecting personal privacy and monitoring surveillance by governments, financial institutions, intelligence agencies, media, political groups, police, and other organizations.
190. Simon Davies, The United States Privacy Protection Act, 1993 (S. 1735), Draft Discussion Paper at 2 (Mar. 11, 1994); see also, Simon Davies, Comment: A U.S. Privacy Commission, 2 INT'L PRIVACY BULL., Jan./Mar. 1994, at 3.
191. Davies, The United States Privacy Protection Act, 1993 (S. 1735), Draft Discussion Paper, supra note 166.
192. Jonathan Graham, Note, Privacy, Computers and the Commercial Dissemination of Personal Information, 65 TEX. L. REV. 1395 (1987).
193. Id. at 1422-23 n.146 (citation omitted). 170 Privacy Act Amendments of 1991, supra note 155, at 3450.
194. Id.
195. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at 232.
196. Id.
197. 44 Fed. Reg. 57,537 (1979), 44 Fed. Reg. 75,755 (1979). See also Cooney, supra note 38, for an extensive discussion of the status of work place monitoring in today's private sector industry.
198. Ehlke, supra note 158, at 840-41.
199. Id.
200. 5 U.S.C. § 552(b)(6) (1988).
201. 137 CONG. REC. H3449-06 (daily ed. May 22, 1991) (statement of Rep. Wise).
202. See supra notes 8-36 and accompanying text.
203. Id.
204. Mason, supra note 5; Piller, supra note 113.
205. For instance, the National Airline Commission has accepted President Clinton's proposal that the U.S. Air Traffic Control system become a quasi-governmental operation, as opposed to a standard government agency, allowing it greater flexibility and freedom. Jeffrey Lenorovitz & Edward Phillips, Clinton Compromises on Airline Strategy, AVIATION WEEK & SPACE TECHNOLOGY, Jan. 10, 1994, at 22. See also Harold Seidman, Government Corporations in the United States, 22 OPTIMUM 40 (1991/1992).
206. OECD GUIDELINES, supra note 54. For a more complete discussion of the OECD Guidelines, see Boehmer & Palmer, supra note 49, at 273-76.
207. OECD GUIDELINES, supra note 54, Recommendation 1.
208. OECD GUIDELINES, supra note 54, pt. 3, § 17.
209. Id.
210. COE CONVENTION, supra note 55. For a more complete discussion of the COE Convention, see Boehmer & Palmer, supra note 49, at 276-79.
211. Id. art. 4, §1.
212. MADSEN, supra note 50, at 25.
213. 1992 DIRECTIVE, supra note 56.
214. COUNCIL OF THE EUROPEAN COMMUNITIES, COMMON POSITION (EC) No. 1/95, 1995 O.J. 1 (Notice No. 95/C 93/01 (4/13/95)); EC Press Release: IP/95/822 (7/25/95), "Council Definitively Adopts Directive on Protection of Personal Data."
215. Id. at art. 32(1).
216. 1992 DIRECTIVE, supra note 56, art. 5. If minimum standards have not been met, Article 26, §§ 1 and 2 of the 1992 Directive provide mechanisms for specific approval of the transfer of information to that country. In one instance in which the Italian automobile firm, Fiat, attempted to transmit information from its subsidiary in France to Italy, France refused to permit the transmission because Italy did not offer adequate protections for the information. See MADSEN, supra note 50, at 9.
217. 1992 DIRECTIVE, supra note 56, art. 30, § 1.
218. David Flaherty, a recognized scholar in the area of privacy protection and Canada's Privacy Protection Commissioner, observed in 1989, "Unless a federal data protection agency is created in the United States, the federal system for articulating privacy interests in a systematic fashion is woefully inadequate." DAVID H. FLAHERTY, PROTECTING PRIVACY IN SURVEILLANCE SOCIETIES 382 (1989). See also Mark Rotenberg, In Support of A Data Protection Board in the United States, 8 GOV'T INFO. Q. 79 (1991);
219. David Flaherty, a recognized scholar in the area of privacy protection and Canada's Privacy Protection Commissioner, observed in 1989, "Unless a federal data protection agency is created in the United States, the federal system for articulating privacy interests in a systematic fashion is woefully inadequate." DAVID H. FLAHERTY, PROTECTING PRIVACY IN SURVEILLANCE SOCIETIES 382 (1989). See also Mark Rotenberg, In Support of A Data Protection Board in the United States, 8 GOV'T INFO. Q. 79 (1991);
220. CONG. REC. H755 (daily ed. Jan. 29, 1991) (statement of Rep. Wise) (introduction of the Data Protection Act of 1991, H.R. 685).
221. Priscilla Regan, The Globalization of Privacy, 52 J. ECON. & STRATEGY 257, 266-67 (1993).
222. PRIVACY PROTECTION STUDY COMMISSION, supra note 80, at 14. The requirements and proscriptions of the Privacy Act were based on five principles articulated by an advisory committee to the Department of Health, Education and Welfare in a report entitled, "Records, Computers and The Rights of Citizens." The principles are as follows: 1. There must be no personal data record-keeping systems whose very existence is secret. 2. There must be a way for an individual to find out what information about him is in a record and how it is used. 3. There must be a way for an individual to prevent information about him that was obtained for one purpose from being used or made available for other purposes without his consent. 4. There must be a way for an individual to correct or amend a record of identifiable information about him. 5. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuse of the data. Murg & Maledon, supra note 6, at 171 (citing HEW, RECORDS, COMPUTERS AND THE RIGHTS OF CITIZENS (1973)). In addition, in his testimony before Congress, Charles Piller, senior associate editor of MacWorld magazine, outlined basic features for an effective employee privacy policy. The principles espoused by Piller are unique in that they purport to safeguard employee privacy rights without sacrificing important management interests, an appropriate objective for a federal privacy act. Those factors are: 1. Employees are entitled to reasonable expectations of personal privacy on the job. 2. Employees know what electronic surveillance tools are used, and how management uses the collected data. 3. Management uses electronic monitoring or searches of data files, network communications or electronic mail to the minimum extent possible. Continuous monitoring is not permissible. 4. Employees participate in decisions about how and when management conducts electronic monitoring or searches. 5. Data is gathered and used for only clearly defined work-related purposes. 6. Management will not engage in secret monitoring or searches, except when credible evidence of criminal activity or other serious wrongdoing comes to light. 7. Monitoring data will not be the sole factor in evaluating employee performance. 8. Employees can inspect, challenge, and correct electronic records kept on their activities or files captured through electronic means. 9. Records that have become irrelevant to the purposes for which they were collected will be destroyed. 10. Monitoring data that identifies individual employees will not be released to any third party, except to comply with legal requirements. 11. Employees or prospective employees cannot waive privacy rights. 12. Managers who violate these privacy principles are subject to discipline or termination. PWCA Hearings, supra note 10, at 8-9.
223. It is not so difficult to respond to these concerns in formulating legislation, and several states have already forged a path. New York and Minnesota, for instance, have state privacy protection statutes in place. New York's Personal Privacy Protection Law establishes a Committee on Open Government that oversees the compliance of state agencies with its provisions. Personal Privacy Protection Law (N.Y. STAT. ANN. §§ 89(1), 92(2), 93 (West 1994)). Minnesota's Government Data Practices Act (MINN. STAT. ANN. §§ 13.01 - 13.90 (West 1988 & Supp. 1995)) applies not only to state agencies, but also to municipal governments. Id. §13.01. The Act establishes a data classification system to categorize all government information according to the individuals who may access that information and requires that each agency subject to the Act establish a "responsible authority" who is accountable for compliance with the Act. Id. §§ 13.02(16), 13.03(3), 13.05.
224. See supra note 197 (Piller factor 5).
225. See supra note 197 (Piller factors 1, 2 and 6).
226. See supra note 197 (Piller factor 10).
227. See supra note 197 (Piller factors 1, 4 and 11).
228. The Privacy Protection Study Commission has endorsed the concept of "expectation of privacy" but only where the government entity seeksrecords from a record keeper such as a bank or an employer. PRIVACY PROTECTION STUDY COMMISSION, supra note 80 at 357. Note also that the Privacy Act has a similar provision. o U.S.C. § 552a(e)(3)(C) (1988).
229. Brunn, supra note 78, at 390.