Category Archives: Privacy

Drug Testing Unemployment Insurance Applicants: An Unconstitutional Solution in Search of a Problem

Source: Rontel Batie, George Wentworth, National Employment Law Project (NELP), Policy Brief, February 2017

From the summary:
Historically, states have never drug tested applicants for unemployment insurance (UI), primarily because the Social Security Act prohibits states from adding qualifying requirements that do not relate to the “fact or cause” of a worker’s unemployment. In the aftermath of the Great Recession, however, some states, in a misguided effort to try to contain the high costs of their UI programs due to high unemployment rates, began clamoring to drug test UI applicants. Their hypothesis (without any facts or data to back it up) was that claims would somehow substantially decrease, either as workers tested positive for drugs or declined to apply because of their drug use.

Mindful of the goal of drug-free workplaces but also of the lack of any data that drug use was an issue among the unemployed, in 2012, Congress reached a narrow compromise on drug testing UI claimants, one that took into account the serious constitutional issues with suspicionless drug testing. Congress agreed to allow, not require, states to test UI claimants in two specific, narrow circumstances: (1) workers who had been discharged from their last job because of unlawful drug use, and (2) workers looking for jobs in occupations where applicants and employees are subject to regular drug testing. Consistent with the new federal law, the U.S. Department of Labor issued regulations that closely tracked the legislation, defining occupations subject to regular testing to mean occupations where testing is legally required (either now or in the future), and not merely permitted.

Congressional Republicans, unhappy with the compromise they agreed to in 2012, have criticized the Labor Department regulations since they were proposed, claiming they were too narrowly drawn even though they closely tracked the legislation. The House of Representatives is now planning to invoke the Congressional Review Act to invalidate these regulations; and presumably, proponents of drug testing are counting on passage of a bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX) that would effectively allow states to drug test all jobless workers filing for unemployment insurance. This bill, which we expect will be reintroduced shortly, would allow states to define occupations that “regularly” drug test to include all occupations where testing (including pre-employment testing) is permitted. If passed, this bill would open the floodgates for states to arbitrarily and unconstitutionally drug test its citizens solely because they are applying for UI benefits.

No one should be so confident that this bill could pass the Senate. Proponents have been trying to build support for drug testing UI claimants for years; but for the very narrow compromise reached in 2012, there has been no wider bipartisan support for the policy. Indeed, that is because such drug testing is simply another humiliation piled onto unemployed workers—a hurdle designed to be so stigmatizing that it discourages people from even applying for a benefit that they have earned in the first place….

Federal Privacy Council Online Law Library

Source: Federal Privacy Council, 2016

The Law Library is a compilation of information about and links to select Federal laws related to the creation, collection, use, processing, storage, maintenance, dissemination, disclosure, and disposal of personally identifiable information (PII) by departments and agencies within the Federal Government. The Law Library does not include all laws that are relevant to privacy or the management of PII in the Federal Government.

The Law Library only includes laws applicable to the Federal Government. Although some of the laws included may also be applicable to entities outside of the Federal Government, the information provided on the Law Library pages is strictly limited to the application of those laws to the Federal Government; the information provided does not in any way address the application of any law to the private sector or other non-Federal entities.

The Law Library pages have been prepared by members of the Federal Privacy Council and consist of information from and links to other Federal Government websites. The Federal Privacy Council is not responsible for the content of any third-party website, and links to other websites do not constitute or imply endorsement or recommendation of those sites or the information they provide.

The material in the Law Library is provided for informational purposes only. The information provided may not reflect current legal developments or agency-specific requirements, and it may not be correct or complete. The Federal Privacy Council does not have authority to provide legal advice, to set policies for the Federal Government, or to represent the views of the Federal Government or the views of any agency within the Federal Government; accordingly, the information on this website in no way constitutes policy or legal advice, nor does it in any way reflect Federal Government views or opinions. Agencies shall consult law, regulation, and policy, including OMB guidance, to understand applicable requirements.

Why People Quit Their Jobs

Source: Harvard Business Review, September 2016

….Attrition has always been expensive for companies, but in many industries the cost of losing good workers is rising, owing to tight labor markets and the increasingly collaborative nature of jobs. (As work becomes more team-focused, seamlessly plugging in new players is more challenging.) Thus companies are intensifying their efforts to predict which workers are at high risk of leaving so that managers can try to stop them. Tactics range from garden-variety electronic surveillance to sophisticated analyses of employees’ social media lives.

Some of this analytical work is generating fresh insights about what impels employees to quit. In general, people leave their jobs because they don’t like their boss, don’t see opportunities for promotion or growth, or are offered a better gig (and often higher pay); these reasons have held steady for years. New research conducted by CEB, a Washington-based best-practice insight and technology company, looks not just at why workers quit but also at when….

Feds: We can read all your email, and you’ll never know

Source: Clark D. Cunningham, The Conversation, September 21, 2016

The federal government is getting access to the contents of entire email accounts by using an ancient procedure – the search warrant – with a new, sinister twist: secret court proceedings.

The earliest search warrants had a very limited purpose – authorizing entry to private premises to find and recover stolen goods. During the era of the American Revolution, British authorities abused this power to conduct dragnet searches of colonial homes and to seize people’s private papers looking for evidence of political resistance.

To prevent the new federal government from engaging in that sort of tyranny, special controls over search warrants were written into the Fourth Amendment to the Constitution. But these constitutional provisions are failing to protect our personal documents if they are stored in the cloud or on our smartphones.

Fortunately, the government’s efforts are finally being made public, thanks to legal battles taken up by Apple, Microsoft and other major companies. But the feds are fighting back, using even more subversive legal tactics.

This employee ID badge monitors and listens to you at work — except in the bathroom

Source: Thomas Heath, Washington Post, September 7, 2016

Do you hog office conversations? Or not talk enough? Does your voice squeal?

Do you sit very still at your desk all day? Or do you fidget under stress? Where do you go in the office? How much time do you spend there? To whom do you talk?

An employee badge can now measure all this and more, all with the goal of giving employers better information to evaluate performance. Think of it as biometrics meets the boss.

A Boston company has taken technology developed at MIT and turned it into special badges that hang around your neck on a lanyard. Each has two microphones doing real-time voice analysis, and each comes with sensors that follow where you are in the office, with motion detectors to record how much you move. The beacons tracking your movements are omitted from bathroom locations, to give you some privacy….

Body Camera Laws Raise Questions about Access to Footage

Source: Nathan Smith, Council of State Governments, The Current State, #72, August 8, 2016

In the wake of several high-profile incidents involving the injury or death of citizens during altercations with law enforcement, questions surrounding police misconduct and use of force have grown in recent years. Increasingly, policymakers and the American public alike are looking to and calling for the use of body cameras by law enforcement officers in an effort to increase transparency in police-civilian interactions. A 2015 University of Nevada, Las Vegas survey revealed that 85 percent of those in a national sample of U.S. adult residents supported a requirement for police officers to wear body cameras while on patrol to record their interactions. While support for such a requirement is strong and more police departments are expected to adopt body cameras, one question is fiercely divisive: Who should have access to footage recorded on police body cameras?

Illinois AG Rules That Public Employees’ Personal Emails Are Public Records – Messages Pertaining to Public Business in Personal Email Accounts Subject to Disclosure Under FOIA

Source: Mark E. Burkland, Benjamin Schuster, JD Supra, August 16, 2016

• The Illinois Attorney General (AG) issued a binding opinion under the state’s Freedom of Information Act (FOIA) that email messages sent or received through public employees’ personal email accounts may be public records subject to disclosure under FOIA if the messages pertain to public business.
• The opinion was issued as a result of CNN’s FOIA request seeking all email messages from Chicago Police Department email accounts and personal email accounts related to Laquan McDonald, who was fatally shot by a police officer in October 2014.
• In light of the AG’s opinion, public bodies should expect to receive FOIA requests that specifically request email and text messages sent or received through personal email accounts and on personal devices. Accordingly, each public body should establish clear guidelines requiring employees to turn over, if requested by the public body, personal email and text messages that pertain to public business….

Body Cameras and Police

Source: Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

Public Perceptions of the Justifiability of Police Shootings: The Role of Body Cameras in a Pre- and Post-Ferguson Experiment
Scott E. Culhane, John H. Boman IV, and Kimberly Schweitzer, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
We conducted two studies, wherein participants from across the United States watched, heard, or read the transcript of an actual police shooting event. The data for Study 1 were collected prior to media coverage of a widely publicized police shooting in Ferguson, Missouri. Results indicated that participants who could hear or see the event were significantly more likely to perceive the shooting was justified than they were when they read a transcript of the encounter. Shortly after the events in Ferguson, Missouri, we replicated the first study, finding quite different results. Although dissatisfaction with the shooting was seen in all forms of presentation, video evidence produced the highest citizen perceptions of an unjustified shooting and audio evidence produced the least. Citizens were nonetheless overwhelmingly favorable to requiring police to use body cameras. Body-mounted cameras with high-quality audio capabilities are recommended for police departments to consider.

Officer Perceptions of Body-Worn Cameras Before and After Deployment: A Study of Three Departments
Source: Janne E. Gaub, David E. Choate, Natalie Todak, Charles M. Katz, and Michael D. White, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
Over the past few years, several events have highlighted the strained relationship between the police and residents in many communities. Police officer body-worn cameras (BWCs) have been advocated as a tool by which police–community relations can be strengthened, while simultaneously increasing transparency and accountability of police departments. Support for BWCs from the public and federal government is strong, and some studies have examined police perceptions of BWCs. However, comparisons of officer perceptions of BWCs in different departments are lacking, as are assessments of officer attitudes pre- and post-BWC deployment. This study compares officer perceptions of BWCs in three police departments in the western United States between 2013 and 2015, both before and after BWC program implementation. The similarities and differences among officer perceptions across departments are examined, and the authors consider the implications of findings for police departments moving forward with BWC technology.

Assessing the Impact of Police Body-Worn Cameras on Arresting, Prosecuting, and Convicting Suspects of Intimate Partner Violence
Source: Weston J. Morrow, Charles M. Katz, and David E. Choate, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
The perceived benefits that generally accompany body-worn cameras (BWCs) include the ability to increase transparency and police legitimacy, improve behavior among both police officers and citizens, and reduce citizen complaints and police use of force. Less established in the literature, however, is the value of BWCs to aid in the arrest, prosecution, and conviction of intimate partner violence (IPV) offenders. We attempt to fill that void by examining the effect of pre- and post-camera deployment on a number of outcomes related to arrest, prosecution, and conviction. The findings provide initial evidence for the utility of BWCs in IPV cases. When compared with posttest non-camera cases, posttest camera cases were more likely to result in an arrest, have charges filed, have cases furthered, result in a guilty plea, and result in a guilty verdict at trial. These results have several implications for policing, prosecuting, and convicting IPV cases.

Increasing Cooperation With the Police Using Body Worn Cameras
Source: Barak Ariel, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
What can change the willingness of people to report crimes? A 6-month study in Denver investigated whether Body Worn Cameras (BWCs) can change crime-reporting behavior, with treatment-officers wearing BWCs patrolling targeted street segments, while control officers patrolled the no-treatment areas without BWCs. Stratified street segments crime densities were used as the units of analysis, in order to measure the effect on the number of emergency calls in target versus control street segments. Repeated measures ANOVAs and subgroup analyses suggest that BWCs lead to greater willingness to report crimes to the police in low crime density level residential street segments, but no discernable differences emerge in hotspot street segments. Variations in reporting are interpreted in terms of accountability, legitimacy, or perceived utility caused by the use of BWCs. Situational characteristics of the street segments explain why low-level street segments are affected by BWCs, while in hotspots no effect was detected.

Research on Body Worn Cameras: Meeting the Challenges of Police Operations, Program Implementation, and Randomized Controlled Trial Designs
William H. Sousa, James R. Coldren, Jr., Denise Rodriguez, and Anthony A. Braga, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
As police departments across the United States equip officers with body worn cameras (BWCs), research has focused on the technology’s impact on police interactions with citizens, officer misconduct, officer use of force, and false allegations against police. Given the large number of police agencies implementing BWCs across the country (numbering in the thousands), there will be a growing number of opportunities for BWC evaluations and expectations that these programs will be evaluated. Studying the implementation of BWCs presents a number of challenges to both researchers and police agencies, particularly when large police organizations are involved. Drawing on our experiences involving a BWC experiment with the Las Vegas Metropolitan Police Department, this article discusses the programmatic challenges of implementing a BWC program in a large agency (technical, political, and administrative) while simultaneously evaluating the program using a randomized controlled trial design.