NWA Searches Home PCs over Sick Out? (fwd)

[Flint Jones <flint@mobtown.org>]

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---------- Forwarded message ----------
Date: Tue, 8 Feb 2000 11:05:50 -0500 
From: "Pennington, Tom" <tpenning@law.umaryland.edu>
To: "'flint@secret.org'" <flint@secret.org>
Subject: NWA Searches Home PCs over Sick Out?

http://www.startribune.com/viewers/qview/cgi/qview.cgi?template=biz_a&slug=p
riv0208


Court authorizes search of Northwest employees' home computers
Eric Wieffering and Tony Kennedy Star Tribune
Tuesday, February 8, 2000 

Northwest Airlines last week began court-authorized searches of the home
computers of between 10 and 20 flight attendants, 
looking for private e-mail and other evidence that the employees helped to
organize a sickout at the airline over the New Year's holiday.
The search has since been suspended pending a temporary settlement of the
airline's lawsuit against Teamsters Local 2000, the union 
representing 11,000 flight attendants. But privacy advocates and attorneys
not involved with the case say Northwest's action may embolden 
other companies to more aggressively monitor what employees say and do
online from their home computers.
"If Northwest succeeds in gaining access to the hard drives of the home
computers of its employees, it will certainly put a chill on the uses 
employees everywhere make of their home computers," said Beth Givens,
director of the Privacy Rights Clearinghouse in San Diego.
Northwest's action comes at a time when bills to protect individual privacy
have been introduced at the state and national level. In addition, 
an increasing number of employees are learning, to their dismay, that
companies have the right to monitor their online activities at work. 
Last month, for example, the New York Times fired 23 employees for sharing
bawdy e-mail messages.
Northwest defended the search, noting that a federal court had authorized
it.
"In the age we live in, the normal course of discovery includes taking
depositions, producing documents and these days more than ever looking 
into the content of computers," said Jon Austin, a spokesman for Northwest.
"So many documents and communications these days are purely electronic in
nature," Austin said.
But companies have rarely sought to search the home computers of their
employees. In the past, most such searches usually have been limited to 
cases involving workers who've been accused of stealing company files,
passing on trade secrets to competitors or using insider information to
profit 
on the trading of company stock.
Nor is all speech on the Internet protected by the First Amendment.
Increasingly, courts have been willing to help companies crack down on
so-called "cybersmearing" -- bad-mouthing companies or their management
online.
"Business speech is not subject to the same protections as political
speech," said John Roberts, a Minneapolis attorney who specializes in
cyberlaw. 
"You can't say whatever you want about a company."
The get-tough strategy is a new one for Northwest, too. In the spring of
1998, the company's mechanics, frustrated by the pace of contract 
negotiations, began an unauthorized work slowdown that forced flight delays
and hundreds of cancellations. Union leaders disclaimed any knowledge 
or authorization of the campaign, which employees advocated on Web sites and
message boards.
Last month, however, Northwest sued the flight attendants union and some of
its members, alleging they had violated federal labor laws by orchestrating
a sickout. Judge Frank agreed with Northwest and issued a temporary
restraining order that prohibited the union from advocating any work
disruptions.
New legal ground 
Still, the Northwest case appears to break new ground because, in addition
to searching the office computers of union officials, Northwest got
permission to search their home computers and the home computers of several
rank-and-file employees, including Kevin Griffin and Ted Reeve. 
The temporary settlement in the suit does not apply to Griffin and Reeve.
The judge agreed to put the suit on hold as it pertains to the union and 19
individuals who are represented by the union's attorneys. But Griffin and
Reeve, who are not represented by union attorneys because they are not union
officers, are still subject to the company's discovery efforts and to a
possible injunction against them.
"This kind of precedent could have a very chilling effect on the exercise of
speech rights, and could set a very bad precedent for privacy," said Jerry
Berman, executive director for the Center for Democracy and Technology, a
leading privacy rights organization based in Washington, D.C.
Like most flight attendants, Griffin and Reeve do not use a computer at
work. But they do operate online message boards where flight attendants have
vented their frustration toward the company and the union leadership.
Griffin's message board, <http://www.nwaflightattendants.com>, included
anonymous postings calling for a sickout, but they were usually followed by
urgings from Griffin that participants not advocate illegal activities.
Northwest hired two computer forensic experts from Ernst & Young to copy the
hard drives of the 21 individuals named in the lawsuit. The judge limited
the search to union activities relating to the sickout or e-mail to 43
individuals, well beyond the number of people named in the original lawsuit.
"This is really an extension beyond established law," said Marshall Tanick,
a Minneapolis attorney who specializes in workplace and privacy issues. "How
different is this from wiretapping somebody's phone?"
Personal data 
Barbara Harvey, a Detroit-based attorney representing Griffin and Reeve,
said the situation has created tremendous anxiety about the possible loss of
"highly personal" information.
"We are trusting them [Ernst & Young] totally. We don't know them. We didn't
hire them. In fact, they were hired by Northwest. But we are put into the
position of having to trust them," she said.
Griffin, a veteran Northwest flight attendant based in Honolulu, surrendered
his Packard Bell desktop and Fujitsu laptop at the Ernst & Young office in
Honolulu. He was met there by two forensic examiners who flew to Honolulu
from Washington, D.C., and Texas.
"I didn't think they had the right to come and get your home computer," he
said.
The threat of a court-authorized search of home computers has already had
one measurable impact: Postings to a rank-and-file Web site that was openly
critical of both union management and the company have slowed to a trickle.
"If you're Northwest Airlines, you're probably smiling about that," said
Paul Levy, a lawyer for Ralph Nader's Public Citizen Litigation Group, which
also represents Griffin and Reeve.
Northwest might not be the only party pleased to see the Web site go quiet.
Griffin's Web site and an organized e-mail campaign were instrumental in
rallying opposition that defeated a tentative contract agreement that was
reached last June and endorsed by the union's top leaders, including
Teamsters General President James Hoffa.
Asked why the union didn't fight harder against the effort to search
employees' home computers, Billie Davenport, president of Teamsters Local
2000, said the union complied with the discovery request because it felt it
had nothing to hide.
'Was enough protection' 
"We had voiced concern over people's privacy. There was an
invasion-of-privacy issue," Davenport said. "But we believe there was enough
privacy protection."
She said Ernst & Young's computer forensic examiners spent two full days in
the union's offices last week, copying hard drives.
Griffin said his Web site has had more traffic than ever in the past month,
but far fewer postings from visitors. Of those who aren't afraid to comment
in the open forum section of the Web site, a much smaller percentage of the
writers are identifying themselves, Griffin said.
"It's like they are running scared, with good reason," Griffin said.

© Copyright2000 Star Tribune. All rights reserved.

__________________________________________________

Tom Pennington 
tpenning@law.umaryland.edu

"Any Technology, No Matter How Primitive, is Magic to Those Who Don't
Understand It"



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