No doubt about it: Cyberspace is the new frontier that the technology gurus told us it would be. It's allowed individuals and companies to push farther and do more than anyone dreamed. Frontiers, however -- think America's Wild West -- often come with unseen dangers, risks and a certain amount of lawlessness until new policies and standards are put into place.
Technology's virtual frontier helped business create a global market, but it also gave rise to cyber crimes, worms, viruses and corporate monitoring of employee communications. Monitoring employee use of phones, voice mail, computers and other electronic devices in the workplace is "cheap, easy and ongoing," according to Marc Rotenberg, executive director of the Electronic Privacy Information Center, a public-interest research center in Washington.
It's also generally legal, because the United States "doesn't have a general framework for privacy protection in the workplace, as do other countries, like France," Rotenberg said.
According to the Electronic Communications Privacy Act, if the employer owns the workplace computer, he or she has the right to monitor all e-mail and surfing of the Web on the corporate system. If you want to keep your health information, job search or divorce personal, use your cellphone and your home computer, Rotenberg advised.
"If a company has a policy on the use of company computers and other equipment and has disseminated it, then the employee can have no expectation of privacy in the workplace," said Jaime Cole, an attorney and associate with Ogletree Deakins, a national management labor and employment law firm based in Atlanta. "If you're doing personal business on your work computer, such as checking personal e-mail or shopping online, you can assume that they're looking at it."
In 2005, an American Management Association and ePolicy Institute Electronic Monitoring and Surveillance Survey of 526 U.S. companies found that 76 percent monitored workers' Web site connections and 36 percent tracked content, keystrokes and time that employees spent at the keyboard. More than 50 percent stored and reviewed employees' computer files, while 55 percent retained and reviewed e-mail messages.
"The technology age is here, and I do think those numbers will go up," Cole said. "With litigation more prevalent, monitoring has become part of the cost of doing business."
Companies monitor their employees because of security, litigation and productivity concerns, said John Borden, partner with Trusted Counsel, a law firm that specializes in executive and corporate representation.
"We've all heard the 'this call may be monitored' recording when talking to a customer service representative," he said. "It's not uncommon for a sales manager to listen in on staff sales calls to maintain quality or improve performance."
External and internal phone calls, voice mail, Internet use, e-mails, instant messaging and files that employees store on their computers routinely are monitored.
"Post-termination forensics may recover data stored on the former employee's computer files, if the employer suspects misuse of company information -- say, a proposal or customer list sent to his home computer or a competitor," Borden said.
Companies need to safeguard corporate data and intangible assets (trade secrets, intellectual property, brands) and to protect themselves from sexual harassment, discrimination or other types of lawsuits.
"In one case, an employee, who had been terminated for violating the company's Internet-use policy, was pursuing unemployment benefits," Borden said. "It helped that the company had a written policy and could prove that inappropriate use had been the cause of termination."
Companies also are concerned about employees' use of work time, Cole said.
"They want to know that you are being efficient. If you're wasting hours surfing the Internet or responding to personal e-mails, you're not doing your job," she said.
She advises each of her corporate clients to have a written technology policy that clearly defines what is and is not appropriate use of company equipment.
"You can put it in the company handbook or on a separate document, but make sure your employees read it and understand it. Some companies even train their employees on the professional use of e-mail and Internet use," Cole said.
Companies need to communicate effectively the business purposes for their monitoring, said Alisa Cleek, a partner with Elarbee, Thompson, Sapp & Wilson, a labor and employment solutions law firm in Atlanta.
"Video surveillance is often used in workplaces that deal with money, like banks or restaurants," she said.
Companies may need to protect data; comply with government statutes, such as the one that prohibits harassment in the workplace; or uphold confidentiality agreements with customers. "They certainly need to protect themselves from liability issues, which are growing," she said.
If companies are monitoring, they can be held liable for not reporting illegal acts, such as sending a pornographic e-mail to a minor, and are accountable for how long they store employee communications.
"The courts are just starting to deal with issues about a company's affirmative duty if they have policies, and it's a fairly gray area," Cole said.
Another new area for monitoring and possible litigation is employee blogging and use of sites such as MySpace.
"Blogging is so new that only about 15 percent of employees do it, and only 5 percent of companies have policies about it, but it's certainly becoming more popular," Cleek said. "The problem is that blogging is very different than just venting about the company with friends, because it is memorialized."
A photo posted on MySpace of an employee wearing a uniform while drinking may be considered damaging to the company, and a racist or sexist comment can reflect negatively on the workplace. On the other hand, employees have some rights and may be protected by whistle-blowing statutes.
"Employers walk a fine line when it comes to the monitoring of blogging or MySpace, because there are no clear-cut laws or guidelines yet," Cleek said.
"The one thing that is definite and important for employees to know is that electronic data from computers and other devices is recoverable," Cole said. "It doesn't matter how many times you delete something; it can be 'e-discovered' by an expert."
"I tell people all the time that they shouldn't forward an inappropriate joke in an e-mail to a friend. I've seen those used in litigation. Employees need to be careful in the way they e-mail, because there is a permanent memory of it," Cleek said.
That evidence, although expensive to find, is the basis for a growing number of corporate lawsuits. According to a 2004 Workplace E-Mail and Instant Messaging Survey of 840 U.S. companies, conducted by the American Management Association and ePolicy Institute, 21 percent had had employee e-mail and instant messages subpoenaed in the course of a lawsuit or regulatory investigation (up from 9 percent reported in 2001). According to the same survey, 13 percent of companies have battled lawsuits triggered by employee e-mails, and 50 percent of workplace IM users send or receive risky content, such as jokes, gossip, confidential information or porn.
Yet 46 percent of companies offered employees no e-mail policy training.
New federal "e-discovery" procedures are compelling companies to understand their data and to know what can and cannot be discarded. The cost and outcomes of lawsuits depend on it.
"Some of the technology is so new that companies are going to have to continuously update their policies and educate their employees. Monitoring issues are at the forefront of human resource managers' minds, because it's a hot topic at conventions," said Cleek, who serves as executive vice president of finance and technology for the Atlanta chapter of the Society for Human Resource Management.
How policies on monitoring are presented and how they're enforced are important to corporate cultures.
"No one wants to work in an environment where there isn't mutual trust and respect," Borden said. "If there are legitimate reasons that require monitoring and the company doesn't abuse the process, then it becomes an accepted part of the company culture. Every company needs the ability to root bad apples out of the organization, but when it is misused and becomes a 'Big Brother is watching' atmosphere, it can destroy a company's culture."
Instead of being a negative factor, a well-defined monitoring policy can be a positive thing in the workplace, Cole noted.
"It defines acceptable behavior and sets boundaries. Knowing what's acceptable with regard to communication may mean that bad behaviors are less likely to happen. That has a positive effect on the workplace," she said.
"If you keep your business communications ethical and professional, you shouldn't have anything to worry about."