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Looking back on the year since September 11, 2001, we are confronted with the impact of that day on our personal and professional lives. September 11th significantly changed the conditions for conducting business and interacting with our employees. One of those changes, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act), was signed into effect on October 26, 2001 by President George W. Bush. Designed to detect and halt the flow of money and information to terrorists and terrorist organizations, as well as to tighten immigration and identification procedures, the Act, in part, targets data communication flow. The Act increases the government's power to seize e-mail and voicemail communications and also enhances the ability of the Federal Bureau of Investigation (FBI) to gather information on individuals having possible links to terrorism.
Before the PATRIOT Act, the FBI could only apply for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession. Now, when there is an ongoing investigation of an individual suspected of terrorist activity, the FBI can request an order from a judge requiring ANY employer to provide information such as an employee's dates of employment, address, phone number, or other general information. Employers who have computer and voicemail systems may be faced with government orders to produce employee voicemail messages or government requests to monitor the employer's e-mail or computer-based voicemail system on a real-time basis. Understandably, the PATRIOT Act has a myriad of human resources implications. Issues of employee privacy and employer liability for providing personal information are of most concern.
How Should an Employer Respond to a Request Under the PATRIOT Act?
In response to a request under the PATRIOT Act employers may:
- Voluntarily provide the requested information
- Ask the law enforcement agency to allow the employer to obtain the employee's permission
- Require that the law enforcement agency serve the employer with a valid legal process such as a warrant or court order
An employer receiving an order under the PATRIOT Act must not disclose the fact that the FBI has sought the information. An employer does not have to worry that complying with an order under the Act and providing the FBI with employee records or communications will result in litigation. As long as it acted in good faith, the company is protected under the Act from liability for violating the privacy rights of employees.
What Does This Mean for You and Your Company?
Employers should consider adopting an approach for responding to an order or request under the PATRIOT Act in case they are presented with one. All human resource personnel should be made aware of the possibility of such a request for information and proper procedures should be developed for compliance.
An employer may want to amend its company policies relating to the confidentiality of employee files and other employee information. A disclaimer indicating that the employer will fully cooperate with any requests by law enforcement agencies for access to employee files could be included. Such language would notify employees that their expectations of privacy may be subject to employer compliance with a request for information under the Act.
For more information regarding privacy, training programs and publications, please call (414) 423-1330 or e-mail Krukowski & Costello's educational services department.
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