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Abstract

The concept of "privacy" has been invoked to protect a variety of distinct interests in the workplace, such as employees' interests in maintaining their bodily integrity, avoiding intrusion on physical spaces, protecting against the seizure of personal items, preventing disclosure of personal information and ensuring individual autonomy. Employees have asserted the right to withhold certain types of sensitive information, or to avoid intensive scrutiny into private matters by their employers. Employers claim an interest in knowing more about their employees and how they are spending their time in order to avoid liability and ensure productivity. The conflict between these competing interests has only sharpened with advancing technology that has made it easier and cheaper for employers to monitor and collect information about their employees. Although technological change raises many different types of privacy issues in the workplace, this Essay focuses on a narrower set of interests—what I call electronic privacy—and its relationship to employee speech. By "electronic privacy" I refer to employees' asserted interest in using various forms of electronic media—email, cell phones, social networking sites, and the Internet—to communicate or to receive information free from employer scrutiny. As the use of electronic devices has proliferated, employees' electronic communications have increasingly come under the scrutiny of their employers, even when those communications are about purely personal matters unrelated to work and even when those communications occur off duty. Employers have retrieved and read highly personal communications among intimates sent over work-provided equipment. They have disciplined or fired workers because of comments they posted on Facebook, or in private chat groups, even when the communications occurred off duty using the employees' home computers. In other cases, employers have seized personal passwords or used forensic techniques to access email exchanged on employees' personal email accounts. [ABSTRACT FROM AUTHOR] Copyright of Chicago Kent Law Review is the property of Chicago Kent Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

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