Electronic surveillance has become a nearly unavoidable fact of life.  When you consider an average person’s average day, it is likely that he or she has their activities recorded electronically several times per hour between the time they leave for work and the time they return home.  Chances are, their activities are subjected to being recorded even after they are in the “privacy” of their own dwelling.

When you stopped at the gas station to fuel your car, or a fast food drive-through to pick a breakfast on the go, there is a record kept.  You are likely video-taped, and if you use a credit card, there will a receipt with an electronic record.  It is not uncommon to hear on the evening news that a crook was tracked down because he used his credit card at a gas station or ATM card at a bank.

When you log onto your computer at work, it is likely that your employer has the ability to review your activities.  If you think you snuck in that game of solitaire without anyone knowing, you are probably wrong!  Your E-mail also leaves an electronic record, both on your machine, and of course with whoever you send it to.  E-mails have become a staple of employment and divorce cases, and factor heavily in many other forms of civil litigation as well.

Many people seem to forget that E-mails (as well as text messages and other forms of electronic communication), are preserved for posterity, and simply type out their stream of consciousness.  Doing so is a terrible mistake, and it is not uncommon for such mistakes to decide the outcome of a civil case.

It is just as common for people to forget that their physical actions are often video-recorded when in public, at the workplace, or even in certain private situations.  Keep an eye on Douglas, Leonard & Garvey’s website for cases involving video surveillance right here in New Hampshire.  They are sure to drive home the point of how important and damning video evidence can be.  Douglas, Leonard & Garvey has also been involved in cases where phone recordings (usually in the form of 911 calls, but also voice mail messages) have played decisive roles in the outcome of litigation.

During your commute to and from work, your comings and goings are recorded by electronic toll devices like EZ-Pass, and even your car keeps a record of how you drive, which can be downloaded if you get in an accident.  Even your home computer keeps a record of your web searches and other activities, which can be subjected to a forensic search if necessary in a civil or criminal case.

The moral of the story is to ask yourself this question on a regular basis:  “How would my next decision look, sound, or read on a video, audio, or other electronic record?”  If the answer is “not good,” then reconsider doing it, because it is just as likely as not that whatever it is you are doing, there will be an electronic record.

Do you regard your fellow employees as your friends?  Do you chat with them during the workday regarding details of your personal life?  Do you sometimes socialize with them after work and talk about personal matters?

If so, consider changing your habits and keeping your private information private.  Why?  It’s certainly desirable to be friendly with your co-workers.  A harmonious workplace is certainly more pleasant and productive than an acrimonious one.

Yet, personal information that you share with your co-employees can come back to haunt you if you are fired.  Suppose that you share details of stormy times in your marriage with your co-workers or, worse yet, with your supervisors.  Then suppose you are sexually harassed in the workplace.  You report the harassment and the company fires you a short time later, purportedly for “poor performance.”

You bring a claim for harassment and retaliatory discharge against your employer, claiming emotional distress as an element of your damages.

Your employer will almost certainly use the information that you shared about your domestic discord against you in at least two (2) ways.  First, the employer will claim that you were unproductive and a “poor performer” in the workplace because you spent so much time talking about your personal problems.  Second, your employer will claim that whatever emotional distress you claim stems from your marital problems, not from the alleged sexual harassment.

Keeping private information private when you are in the company of your co-workers guards against the danger that your employer may someday use as a weapon against you the confidences that you shared.

Facebook, Twitter, etc. are fast becoming a popular tool for employers looking for information about future employees.  The social networking sites, according to one source, are used by 45% of employers to screen potential job candidates.  At least a third of those employers have rejected an applicant because of information they discovered from  social networking sites where the future employee talked about drug and alcohol use, nudity, bad mouthed a former employer, bragged about misconduct or made discriminatory remarks.    This is another reminder that postings on the internet are available for many people to see – even those you don’t intend to read it or use the information.  All of those folks who are having fun on the internet should realize that it may cost them a future job because for employers it’s fast, free and easy and there is a treasure trove of ridiculous information posted by people.  Young people especially enjoy putting their wild and crazy times on the internet for the rest of eternity.  Social networking sites, including profiles, will tell an employer most information they might want to do know but are afraid to ask such as, gender, marital status, religion, age, and even a photograph to help show ethnicity, race, etc.

For future employees, beware of what you decide to post on the internet because it may come back in many ways.

The rise of computer technology has created new challenges for courts and lawyers concerning the scope of privacy protection afforded by the Fourth Amendment. When the Founding Fathers wrote that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” they had no idea that the future would enable people to carry their “papers and effects” with them everywhere they went. Yet “flash” or “thumbdrive” technology allows them to do just that. A recent Federal case out of Florida provides an example of the difficulties that new technologies present for court attempting to apply constitutional protections written well over 200 years ago.

In United States v. Durdley, the government wanted to use evidence obtained from a flash drive that Mr. Durdley had accidentally left in a computer at his place of work. The flash drive had some work-related documents, but it also had evidence that the government used to convict him of a crime. This evidence was found when a co-worker sat down at Durdley’s computer terminal and began searching through the non-work-related files. The co-worker alerted the authorities, who then used the evidence to convict Durdley of the crimes.

Durdley argued that he had an expectation of privacy in the contents of the thumb drive. He never loaded the incriminating evidence onto his work computer and never made it available for public viewing. The co-worker realized that Durdley had left the thumb drive behind and began searching through it, then alerted police. The court found that by leaving his thumb drive in the computer, Durdley forfeited his Fourth Amendment rights.

This is yet another example of a case in which the government, criminal defendants, and courts are struggling to figure out how to apply constitutional protections drafted in the 18th century to the digital age.