Privacy

Brazil vs. the United States

Gerson De Conti II, Robert Rhyne, Chris Glasnapp, Brian Roderick, Jon Torres, Tanh Nguyen, Clif Gaus

Instructions
First read the full scenario description, then each country's response and reasoning. Basically you should visit each of the following links in order.

Presentation:
Introduction
Statement of scenario
U.S. response
U.S. reasoning
Brazilian response
Brazilian reasoning
Comparison of countries
Final thoughts

References:
Electronic Communication Privacy Act.
Fact Sheet 7: Workplace Privacy.
Los Angeles Times, Monday, August 9, 1999. Page E3, col 1.
Peraonal interview with Gerson De Conti I, April 26, 2002.
Country Reports A-G.
Netto, Agusto Dias.
Privacy at work? Be serious
Brazil's constitution
Brazil moves closer to enacting privacy legislation
U.S. Code
Privacy and freedom of information
Mayton, M. Personal Interview about Privacy in the workplace., April 26, 2002.
Overly, M. E-Policy: How To Develop Computer, E-Policy, and Internet Guidelines to Protect Your Company and Its Assets”, Foley & Lardner, 2001.

Contact information:
Gerson De Conti II
Robert Rhyne
Chris Glasnapp
Brian Roderick
Jon Torres
Tanh Nguyen
Clif Gaus





Introduction

In the current workplace, electronic mail is used as a practical and efficient means of communication. Email is not only used within the company but also with clients and suppliers. The workplace in Brazil is no different and they use electronic forms of communication as much as the US. The only difference is that in Brazil companies openly admit to using software like the one mentioned in the Big Bother Bart scenario to invade employee’s privacy even though it is against the law. Some companies in Brazil admit that they use this software to watch their employee’s e-mail because they wish to make sure their employees are doing their jobs. When those companies use the software to constantly watch their employees they monitor all forms of electronic communication regardless if it is related to the company or not.
Statement of scenario

The Big Bother Bart scenario deals with a support guy (Bart) and a piece of support software much like the Desktop Streaming used here at Tech. Desktop Streaming is a piece of software that streams the users screen to the support person’s computer. The support person can monitor everything that happens on the desktop and can also take control of the computer. Here at Virginia Tech the user must allow the desktop streaming and certain indicators clearly show the user when the support person can view their screen and exactly what they are viewing. It is also impossible for a support person to use Desktop Streaming without a user’s consent. The Big Bother Bart scenario deals with the privacy issue when the user’s screens were monitored without the user’s consent. Bart is told by an upper-up to monitor two employee’s computers without their consent for the purpose of collecting evidence of illegal activity. By doing this Bart would be using this software for a reason that the software was not intended for and Bart questions whether or not he should do it. Because the users never signed any agreement concerning constant monitoring of their computer systems this can lead into invasion of privacy by the company.
U.S. Response

Privacy in the workplace is degrading at an alarming rate, despite the passing of the Electronic Communication Privacy Act (ECPA) in 1986, which protects only users who are working on private property and equipment. Since there were no protections for users in the workplace, working on property owned by the company, electronic monitoring of employees has risen and is expected to account for $561 million of industry spending according to an article in wired.com. Such an increase would seriously detriment the privacies of individuals in the workplace. Since much of this monitoring involves direct eavesdropping of every working of an employee on their computer, this would seriously increase paranoia amongst employees.

Speaking on the subject with Melissa Mayton, Virginia Tech graduate of 2000, she spoke of how uncomfortable she felt knowing that even in her small company of 11 employees, the owner personally monitors the electronic correspondence on the computer. In the Ms. Mayton’s case, she uses her computer at work for personal emails as well, since she does not have Internet access in her home. She noted that this was the case for several of her co-workers as well.

The alarming rate in which workplace eavesdropping is increasing has caused Congress to take action. According to Wired.com, Congress proposed a bill entitled, Notice of Electronic Monitoring Act (NEMA) which eventually died in committee, but is expected to be brought back to committee again this year. California Governor Gray Davis has vetoed similar legislation twice, while Connecticut remains the only state in the Union to require employers to notify their employees of such monitoring.

According to Michael Overly, the worker’s right to privacy is protected under state privacy laws, but under the court’s interpretation. "All states have a right to privacy based on a 'reasonable expectation of privacy,'" Overly said. "But the courts have said that if there is a written policy notifying employees of monitoring, there is no expectation of privacy." Therefore, an employee can make a case for a privacy violation if they are lead to believe it is private. However, in the case of Ms. Mayton, her employer notified her of the monitoring, therefore she cannot expect that her personal emails not be monitored and read by the company.

The problem that faces the companies today is two-fold. On one hand, they create an environment devoid of trust, when they constantly monitor the electronic correspondence sent out by their employees. However, the company is also held highly responsible in cases of harassment, which almost requires companies to monitor for harassment emails and other electronic correspondence that can be used to harass employees. The result of this bi-modal dilemma is that companies are faced with the burden of protecting against harassment, while still giving their employees the respect and privacy that they should enjoy. This respect is something that we, as Americans, are used to enjoying under the 4th Amendment, but still face because of company ownership of property.
U.S. Reasoning

Before 1986, privacy was protected under the Fourth Amendment. However, with the rise of computers and other electronic communication devices, the Amendment proved to be insufficient. For example, in the case of United States v. Kennedy, the Fourth Amendment restrictions are found to be inapposite to interception of electronic communications by private parties: "The Fourth Amendment's protection against unreasonable searches and seizures 'proscribes only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" The First Amendment also provides no protection against freedom of expression restrictions imposed by a private corporation or person. Hence a new privacy law was needed to address the widespread use of new communication technologies.

Under the Electronic Communication Privacy Act of 1986(ECPA), it is a federal offense to access a system without authorization, to read someone else's electronic mail, or to "bug" a private telephone conversation. However, the Act only protects those who are in their own private property. It does not apply to one’s privacy rights within the workplace. Since the employer owns the computer network and the terminals, he or she has the right to use them to monitor employees. "'[T]here's absolutely no protection when it comes to electronic communications on computers,' says Jeremy Gruber, an attorney with the American Civil Liberties Union . . . . Employees at private-sector companies, Gruber says, can riffle through your e-mail, computer files and Web-browsing history at will..." (L.A. Times, Aug. 9, 1999, at E3, col. 1) As for telecommunication within the workplace, the ECPA allows unannounced monitoring for business-related calls.

Under certain circumstances, the employees do have some protection from computer and other forms of electronic monitoring. An example would be union contracts that may limit the employer's right to monitor. In addition, "...public sector employees may have some minimal rights under the United States Constitution, in particular the Fourth Amendment, which safeguards against unreasonable search and seizure." (www.privacyrights.org) In general, an employer cannot monitor employee telephone calls or electronic mail when employees have a reasonable expectation of privacy. However, the Act does allow employer to monitor if employees are notified in advance or if the employer has reason to believe the company's interests are in jeopardy.
Brazilian response

When we started this assignment, we met as a group and decided that it would be easier to interview someone we knew. The reason I was picked to get the information is because my father was born in Brazil, has lived there for half his life, and is an easy call away. Personally I haven't lived in Brazil at all, but I have spent a lot of time there visiting my family. First I will write my story, then I will write my father's interview, then I will finish it off with another interview.

I have traveled to Brazil about once every two years for about 2 weeks at a time. This is usually done around Christmas because in the northern hemisphere it's winter while in the southern hemisphere it's summer. Normally I have a rather uneventful trip. I normally just visit the gorgeous beaches. However one time while I was traveling to Uba Tuba, a beach northeast of Sao Paulo, we were pulled over by a cop. To give the setting, my Sister and I were sleeping, tired from the plane trip, and my cousin was driving. When we were pulled over I was quite stunned, as I was very young. Advice I learned while very young: Normally when something happens while in another culture and you don't know how to act, you just keep silent. The policeman came up and asked for his information. I was thinking at the time that he was pulled over for speeding. After he inspected his information, he took a stroll around the car, and then he told my cousin to move on.

The after story is more interesting. I was quite curious what had just happened. So, I asked my cousin what happened and he said, "he was just checking my information." He said it like it was nothing. I then felt violated from a peaceful trip to the beach. When we arrived to the beach house my Sister and I told my father everything. We were still quite curious on why that happened. He told us, "The laws are very similar here to that in the U.S., the difference is here they can pull you over, inspect your car, and say, 'The reason I pulled you over was because I noticed your tires were low.'" In the United States, if a cop did that, he'd be invading privacy. He was able to ask that person's information without having committed a crime. So, in other words, a driver doesn't have the right to drive peacefully from one place to another. I can understand why it's done like that over there though. Most likely it's because stealing cars are quite common. My cousin had her car jacked twice at gunpoint. In Brazil, they hang ribbon from the mirror to symbolize they've been car jacked before. So, my final thought on the whole matter was that in Brazil they are willing to sacrifice, comparably to the United States, a bit more privacy to ensure that their environment is a safer place.

When I called my father up, it was a short interview. He had lived in Brazil during the beginning part of his life. During that time he had mentioned that it wasn't a democracy, but rather a dictatorship. So, during those times, people did what they were told. It wasn't a pretty time back then. He said, now however, since about 20 years ago, the laws are the same as here. Then I mentioned about that car incident that was back a bunch of years. He said that he didn't understand much of today's culture, but he was quite up on the news. So, in other words, from the outside viewing in, it isn't much different. After our first conversation he made a few phone calls to our family and friends down in Brazil. He then called me back up and told me, "That privacy in the workplace was not very private. Since corruption was so rampant that privacy wasn't upheld in the workplace. Same thing went with laws dealing with tracking down criminals. My dad found out the name of what happened to us on our way to the beach. The translated name of it was "Blitz". "Blitz" was where they pull over everyone they can. This method is used to track down criminals. Apparently it's quite effective. The home however is considered really private. Each home is a veritable fortress, with bars, buzz in gates, and high concrete walls.

My conclusion from my personal experiences and my conversations with my father lead me to believe one thing. Privacy is sacrificed for safety. A dictatorship will not happen again due to these privacy laws. However, where privacy can be held, it will be. After discussing what I have found with my group, we have found similar connections between Brazilian laws and culture.
Brazilian reasoning

The best place to find information about the laws governing privacy in the workplace in Brazil is in the Constitution of Brazil. According to the 1988 Constitution of Brazil: “10. the privacy, private life, honor and image of persons are inviolable, and the right to compensation for property or moral damages resulting from the violation thereof is ensured; 11. the home is the inviolable asylum of the individual, and no one may enter it without the dweller's consent, save in the case of "in flagrante delicto" or disaster, or to give help, or, during the day, by court order; 12. the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable, except, in the latter case, by court order, in the events and in the manner established by the law for purposes of criminal investigation or criminal procedural discovery; 14. access to information is ensured to everyone and confidentiality of the source is protected whenever necessary for the professional activity.”

Furthermore, there have been several Senate Bills put before the Government of Brazil relating to privacy issues. In 1996, a bill was proposed that would provide that “No personal data nor information shall be disclosed, communicated, or transmitted for purposes different than those that led to structuring such data registry or database, without express authorization of the owner, except in case of a court order, and for purposes of a criminal investigation or legal proceedings . . . It is forbidden to gather, register, archive, process, and transmit personal data referring to: ethnic origin, political or religious beliefs, physical or mental health, sexual life, police or penal records, family issues, except family relationship, civil status, and marriage system . . . Every citizen is entitled to, without any charge; access his/her personal data, stored in data registries or databases, and correct, supplement, or eliminate such data, and be informed by data registry or database managers of the existence of data regarding his/her person."

When expanded to cover issues concerning corporate surveillance of employees, these laws intersect with several key factors. Namely, employee emails, employee telecommunications and employee transfers of data.

Although several Brazilian companies openly admit to monitoring employee emails, it is against the law. In a legal sense, looking at a private email is the equivalent of “opening a sealed envelope addressed to an employee”. The fact that this email was sent or received in the employee’s workplace is no excuse. In a recent court case titled Ribeiro vs. Distribuidora Farmaceutica Panarello Ltd., it was determined that the location of creation or the ownership of a communicating device does not annul an employee’s personal rights to privacy.

In regards to “wiretapping” or the monitoring of telecommunications in the workplace, the Laws of Brazil are equally as protective of individual privacies. According to a law enacted in 1996, an official wiretap can only be approved for 15 days following a renewable court order. This stipulation comes after the “Telegate Scandal” in 1992 where several ministers resigned after tapes of recorded conversations with the Brazilian Development Bank were leaked to the press.

While these laws are in place, employers will sometimes include special clauses in their employment contracts requiring employees to waive some of their privacy rights. Without these clauses, the only practical way in which a company can legally investigate an employee is to allege that he or she is involved in some illegal actions. By doing this, they can then obtain a court order to investigate the employee.
Comparison of countries

Through our research we have found that The United States and Brazil would have very different reactions to the "Big Brother Bart's" Scenario, on paper at least. The laws set forth by the Brazilian constitution are very clear on this subject. The laws say that the kind of employee monitoring described in the scenario is illegal, because the 1988 Constitution of Brazil upholds the right to an individual’s privacy. However, it seems as if these laws are not always enforced properly in the real world. Gerson's interviews revealed that things are not always as they seem on paper. Because of corruption, it seems that there are times that employees are monitored by their employers, even though this is not a legal act.

The United States laws are almost the exact opposite regarding the privacy of employee's. With some exceptions, the US law books have very little in the way of the privacy of individual employees. Some laws, which apply specifically to unions, can affect and limit the monitoring, but even these cannot prevent it. Congress has considered laws such as the Notice of Electronic Monitoring Act, which would require the employer to inform employees of the monitoring, but they have not been passed into law.
Final thoughts

It seems as if the Brazilian government and United States government had very different ideas in mind when they created laws concerning this issue. Brazil seems to be more concerned about the rights of the individual, while the United States seems to be concerned with the rights of large companies. This makes sense, as the United States has had a history of doing this, probably because of our intense capitalistic system.

As suggested by Gerson, Brazil may have focused on the privacy of individuals more because so many people are poverty stricken. Even though Brazil attempted to model them after the United States, the government had to put more laws into place to adjust for the differences such as this. This may be a reason for the difference in laws.