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Challenging Times for Privacy

By Joseph J. Laferrera

This article was originally published
in the October 16, 2001 issue of the Boston Globe

The terrorists who conspired to wreak chaos and pain on America did more than destroy our buildings and kill our people. The murderers and vandals who hijacked those four airplanes on Sept. 11 were also thieves who stole our national sense of safety and security.

Recent public discourse has examined various government-endorsed security and interdiction measures proposed to prevent a repeat of this kind of disaster, but has largely ignored the role American business is likely to play in this newfound quest to protect ourselves. Each of us has an obligation to assure that the role of business in this effort is balanced and considered.

When our blanket of security was suddenly ripped away, America naturally wanted to reclaim it.

Attorney General John Ashcroft proposed expanding wiretap laws and curtailing immigration rights, while Transportation Secretary Norman Mineta was busy drafting extensive new airport security measures. Some asked in hushed tones whether these changes would threaten constitutional privacy protections, but they were largely drowned out by the cries of a desperate nation. It seemed that the Constitution was incapable of protecting us from these monsters, and safety became a much more urgent need than the intangible ”privacy rights” these new measures might offend.

A recent poll suggests that more than three-quarters of Americans believe a reduced expectation of privacy is the price we must pay for a good night’s sleep. But the currency used to pay that price will not be found primarily in government wiretaps or more rigorous baggage checks. Privacy is principally at risk from covert surveillance and overt security measures adopted by our businesses, not our government. Many companies will perform background checks on prospective and current employees; install sophisticated computer systems to scrutinize office e-mail and Internet use; restrict and monitor physical movement with badges and biometric devices; and install widespread video surveillance equipment.

A frightened and angry public will not just tolerate these measures, it will demand them.

US businesses are held to a high standard when it comes to ensuring safety. An assault victim may sue the hotel in which she was staying for providing insufficient security. An employee injured by a violent coworker with a criminal past can sue for negligent hiring. Liability does not hinge on the companies intending these crimes to occur. In each case, the law asks if the crime was ”foreseeable” and if the company acted ”reasonably” to prevent the harm. Clearly, these are subjective standards, interpreted by judges and juries according to their experiences. But Sept. 11 has forever changed the reservoir of experience upon which we all draw.

Violence that was ”random” a month ago may now seem foreseeable. Security measures that were excessive prior to the attack can now appear ”reasonable” and ”prudent.”

With this dramatic turnaround in public perception, businesses may explore steps that might have made them squeamish only last month. While some of these steps may be overdue, others may be less appropriate and even extreme.

We may convince ourselves that such measures will be only temporary, but invasive business practices may be difficult to abandon once they become widespread.

If we trade in our expectation of privacy by quietly acquiescing to onerous and invasive workplace practices, the ACLU, the Supreme Court, and even the Bill of Rights will not save it for us. We must individually exercise diligence in privacy’s defense, or we risk losing it to terrorism, as well.

Joseph J. Laferrera is a partner at Gesmer Updegrove LLP, a Boston law firm.