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Legal protections for employees against surveillance exist, but so, too, do lawful provisions for employers and government agencies to monitor employees' workplace activities-especially in the aftermath of 9/11 and passage of the USA Patriot Act.
An often-repeated refrain since the terrorist attacks on the World Trade Center and the Pentagon is "The world has changed since 9/11." One of the biggest changes may be employees' willingness to shift their emphasis from protecting their workplace privacy to increasing their security Prior to the 9/11 attacks, workplace-privacy initiatives were gaining momentum, driven by pressure from legislators, regulators, and employee lawsuits. Surveillance activities that were objectionable before 9/11 suddenly became palatable, however, when viewed as a response to security concerns both in the workplace and as part of the United States's "homeland security" initiatives.1 There is little doubt that privacy will reemerge as a paramount concern once employees begin to feel physically secure.2 As such, employers who now develop a monitoring policy that is responsive to reasonable security issues and also sensitive to their employees' privacy interests, and who communicate the scope and purpose of the monitoring program to their employees, will be in
a position to continue their surveillance policies when their workers' focus changes from security back to privacy.
The real loss of privacy in the workplace since 9/11 will most likely not be from increased employer surveillance, however, but rather from the provisions of the USA Patriot Act,3 which eased the restrictions on the government's access to electronic information that employers capture and store. Even though 11 security concerns" is one of the primary reasons given by employers for monitoring the workplace,4 the reality is that the security of most workplaces has not changed as a result of the terrorist attacks.' The biggest threat to most employees on the job remains work-related viofence committed by disgruntled fellow employees or ex-employees.6
While much of the electronic information gleaned from employers' surveillance activities may not be helpful in preventing workplace violence, the government believes such information may be helpful in preventing future terrorist attacks. One question for employers will be, should they voluntarily cooperate with law-enforcement officials by turning over any such information, or should their employees' privacy interests prevail over the nation's security concerns?7...