Orwell Was an Optimist: The Evolution of Privacy in the United States and its De-Evolution for American Employees

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the greatest impacts on one's expectation of privacy-and, hence, one's right to privacy-is technology. In most cases, technology has eroded expectations of privacy-and, consequently, one's right to privacy. As employees spend more time at the workplace, and spend more time working at home, using increasingly advanced technology with greater frequency, the dichotomy of privacy * J.D., M.B.A., Assistant Professor, Department of Management & Marketing, University of Wyoming College of Business. The author thanks Aaron J. Lyttle, J.D. 2010, University of Wyoming College of Law, for his excellent research assistance for this article. 1. ROBERT MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE 429 (Free Press 1968) (1957) (internal quotation marks omitted). 2. See Don Tennant, Q&A: McNealy Defends Sun Reliability, Personal Privacy Views, COMPUTERWORLD, Nov. 27, 2001, (quoting Scott McNealy, Chairman and former CEO of Sun Microsystems), available at http://www.computerworld.com/hardwaretopics/hardware/story/0,10801,66102 ,00.html. See also John Marfkoff, Growing Compatibility Issue: Computers and User Privacy, N.Y. TIMES, Mar. 3, 1999, at Al (quoting Scott McNealy, Chairman and former CEO of Sun Microsystems). The John Marshall Law Review protection between the highly protected home and the lessprotected workplace begins to break down. Employees, for the most part, are unable to bring the stronger home-based privacy protections into work while, at the same time, employer interests begin to intrude upon the sanctity of the home. This Article argues that as more workers bring their work into their home and private lives, "workplace" restrictions on privacy will erode the one last bastion of privacy-one's home. Thus the concern is no longer limited to "workplace privacy" but employee privacy. This Article concludes that what few remaining privacy rights United States employees enjoy are in serious jeopardy, and recommendations are presented to re-establish employee privacy, particularly in the home.