Airlines Corp. NASDAQ NWAC) alleges that its flight attendants' union staged
a sickout, which is a job action not allowed by the contract or by Federal labor
law. Northwest obtained a subpoena to search the home computers of fourteen
employees for emails containing the word "sickout."
is also searching two websites operated by two flight attendants and intends
to seek information from their ISPs. The site operators themselves never called
in sick and claim that they never called for a sickout and that postings on
their site advocated that union members remain within the law. The broader issue
is one of personal privacy.
suits are filed right and left in the case of DoubleClick's use of "personally
identifiable data" this case could make a more permanent mark on the legal landscape
and on the use of the Internet. At issue is when it is permissible for a company
- or a government - to seek information on a home computer.
are precedents that allow this in some situations. Home computers are frequently
impounded and searched in various criminal matters, and former CIA Director
John Deutch lost his security clearance for keeping classified material on an
unsecured home computer.
precise permissibility of this kind of search depends on detailed rules of evidence
and procedure, and will probably find its way at least to an Appellate Court
level. With the advocacy group Public Citizen assisting in the defense, it is
possible that the case may eventually be brought to the Supreme Court; Public
Citizen had already filed a motion against a previous court action in this case.
However, with technology in a state of rapid development it is not at all clear
that the Court will be anxious to hear cases on this topic at this time.
this action, if allowed to stand as a precedent by a higher court, raises questions
for all employees. It is common for people to justify laws or judicial rulings
that reduce protection against government intrusion by arguing that such laws
"only affect people who are committing crimes." While sickouts may be deemed
illegal under the Railway Labor Act, there is as yet no proof that either of
the website operators engaged in a sickout or even advocated one.
operator had posted a notice on his site requesting that users of a forum about
ongoing union negotiations "please refrain from calling for certain actions
that may be illegal. I know we all want results and we all wanted them yesterday
if not three plus years ago but there are certain guidelines we have to follow
even if NWA does not always do so. We must continue to keep the pressure on
the leadership of the Local and the Company too."
other site, according to Public Citizen, did not even have a forum but was restricted
to news, competitive pay scales, and other information. Furthermore, the party
doing the searching is a private company, through its agent Ernst & Young, and
not a criminal justice agency.
attorney we consulted pointed out that allowing this subpoena to stand might
lead to a company being allowed to search your home computer for evidence of
paying bills to liquor stores, or for an indication that you've thought about
taking a sick day to attend a baseball game.
that e-mail to your sister-in-law in which you said that you and a co-worker
joked about your CEO being like the pointy-haired boss in Dilbert could be seen
as working to hurt company morale. In the context of that example, this case
poses two questions. First, if the company already has good reason to suspect
you of sowing dissention, should they have the right to search your home computer
for evidence? Second, if the company believes that somebody has been telling
Dilbert jokes about management, do they have the right to search the home computers
of a large number of people, to see if there's any evidence the phrase "pointy-haired"
in their email files?
Citizen also claims that searching an ISP or website provider is in violation
of the Communications Decency Act, "which forbids any information 'content provider'
on the Internet from being held liable based on content provided by some other
It is certainly true that e-mails can contain information of intense interest
to other parties, and that sometimes searching these e-mails, like searching
a person's home or car, is legal and appropriate. However, other times such
searches would not be legal, and sometimes the appropriateness of a search (or
of the law that authorizes it) is hotly contended.
the law grinds its way to a policy, it may be wise for individuals to be as
careful about discussing work-related issues through their home e-mail as they
are through the office system, which everyone should understand is freely open
to search at any time.