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What Are Your Privacy Rights at Work?

Greg de la Cruz works at NCR Corp's R&D center in the Philippines, and author of two self-published titles on Amazon.

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Individual Right to Privacy

A person’s right to privacy – to be secure against unreasonable searches and seizures – is spelled out clearly and explicitly under the Constitution. But what most may not know is that this set of rights enumerated under the Bill of Rights are normally enforceable against the government or its agents and representatives. When it comes to privacy rights, sometimes it’s hard to draw the line on what constitutes an invasion of one’s privacy especially when the person involved is not in a place where he or she has a reasonable expectation of privacy.

Several landmark cases involving privacy rights have been decided by either the United States Supreme Court or by the Philippines’ Supreme Court, where I base most of my context on. However it’s these U.S. Supreme Court decisions that often set the precedent for the rest of the world, and courts all over the world within their own jurisdictions don’t shy away from citing those decisions, especially when it comes to civil rights.

For the purpose of this article, let’s focus on a person’s right to privacy in his workplace. Specifically, the right against unreasonable search and seizure in the workplace context. As to how the doctrine would be made applicable to the modern workplace – which is a mixed bag of remote and onsite workers – we are yet to know. The facts of the landmark case Mancusi v. DeForte may not be so relatable nor relevant to the circumstances workers face in today’s world. But it does ask and answer the question do I waive my right against unreasonable searches and seizure for personal effects or documents that I leave at the office?

In other words, “Can my desk at work be searched without my say-so?

Mancusi v. DeForte

The backdrop of the landmark case Mancusi v. DeForte needs a lot of explaining, which I will not get into too much to avoid getting sidetracked. If you’ve ever watched the Martin Scorcese film streaming on Netflix The Irishman which stars the gangster-movie classic A-list actors Robert DeNiro, Al Pacino, and Joe Pesci – you’ll probably get some sense of how things were approached in 1968 when the case was decided. In The Irishman, Al Pacino plays the infamous Jimmy Hoffa, longtime President of Teamsters, a prominent labor union rumored to have had connections with and enabling the affairs of gangsters or the mafia.

In 1959, Frank DeForte was a vice president of Teamsters Union Local 266 and was indicted in Nassau County New York, on charges of conspiracy, coercion, and extortion (basically a mafia bag of allegations, bordering on racketeering. The case was filed a decade before the enactment of the RICO Law, which would have helped the prosecution a lot if it existed back then).

The allegation against DeForte was that he had misused his union office to organize owners of juke boxes and compel them to pay tribute. To further the case against him, a subpoena was issued to produce certain books and records. This subpoena was served upon the Union at its offices. The Union refused to comply, and the state officials went ahead and conducted a search operation, where they seized union records from an office shared by DeForte and several other union officials. The search and seizure was done without a warrant and despite DeForte’s protesting it, who was in the office during search.

The seized material was admitted against DeForte during trial. He was convicted.

A crucial fact here – just in case you were reading too fast – was that DeForte shared his office space with other people. He did not have a private office space. Decided cases before DeForte’s already held under that the Fourth Amendment’s guarantee, “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” the word houses should not be taken literally. Meaning, the privacy protection may extend to commercial premises.

However, DeForte did not have a private office. He was sharing the whole space with other co-workers. Was his right to privacy violated when the state officials took stuff from his office desk – a desk he didn’t own, situated inside an office building he also didn’t own nor lease by himself, and within an office area that wasn’t exclusively his?

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Should DeForte Have a Reasonable Expectation of Privacy Despite Being in a Shared Office Space?

The issue before the court was presented in the legal manner of ‘Did he have any legal standing to object to the admission of the seized documents at his trial?’ In other words, could he even protest the search and seizure of his personal documents?

The Supreme Court ruled that yes, “DeForte had Fourth Amendment standing to object to the admission of the papers at his trial…It seems clear that if DeForte had occupied a private office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have standing… In such a private office, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors. It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union members. DeForte could reasonably have expected that only those persons and their personal or business guests could enter the office, and that records would not be touched except with their permission or that of union higher-ups…”

In short, DeForte had a reasonable expectation of privacy for things he kept at his office desk despite sharing the whole office space with other co-workers.

The Supreme Court cited another example where sharing a space didn’t necessarily mean that you had no right to privacy to anything you kept in that shared space. This case was Jones v. United States where Jones was an occasional occupant of an apartment and the police searched for and found narcotics. Jones didn’t own the apartment – he was just given a key by the owner. And in that case, the Court also ruled that Jones also had standing.

Privacy Rights in the Modern Workplace

The modern workplace is tricky, and might not necessarily be like the scenario in the union office of Mancusi v. DeForte where no one has a private office space (although shared office spaces are already way more common today than they were in the 60’s). Another complication arises now because some homes have become workplaces due to the Covid-19 pandemic. For some, this work setup is just temporary while waiting for things to improve, but for others, working at one’s home looks to be permanent. And the right to privacy, while it can extend beyond one’s home under the right circumstances, it can be a gray area especially when your virtual atmosphere is owned and managed by your employer.

Just how far does the right to privacy extend when it comes to your work laptop? What if it’s a laptop that you own, but the tools and applications you use are provided for by your employer? What if both the laptop and tools are paid for and provided by you, but loads of the information in there are owned by your company?

I haven’t come across a case decided by the Supreme Court tackling an issue on the virtual workplace, especially regarding the extent of a worker’s right to privacy in that environment. But when those cases do come, you bet I’ll be excited to talk about them and ask more questions myself.

This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

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