How should employers and employees deal with US law’s new recognition that digital life on a phone or cloud is often as intimate as a diary?

Recent big, bold Supreme Court decisions on cellphone privacy have come at about the same time as the best summer business reading is presenting a cure for the dishonesty of the current employer-employee relationship. The confluence of these two unrelated developments may in fact offer some useful opportunities in connection with the lesser dishonesty of being employed while using the Internet.

The apparent new right in the privacy of cell phone data was immediately recognized as based more on the richness of the personal data than where the data resides, potentially protecting data of comparable richness in all of its clouds and other travels far beyond the cell phone. Already, we can see ripples of these criminal cases in a civil case involving employees going after other employees’ cell phones.

The first big question for employers and employees is: As these ripples move into the workplace and employers realize that their BYOD policies and employee handbooks may not be clear enough regarding the search of personal cloud repositories or other personal information stores, will they continue to design policies, consents and acknowledgements as broadly as the law permits and to some extent requires? Or will they — and in which ways can they, in view of their obligations to monitor discrimination and harassment — think about zones or counterbalancing principles of privacy, because as the Supreme Court recognized the digital lives to which employees can grant access are as personal as the most intimate diary?

That question brought to mind the source of this post’s title, Erving Goffman, because it goes beyond the privacy of data elements to the composition of the employee self in relation to the employer and other employees. Goffman treated face-to-face interaction as theatrical performance, and distinguished a “backstage” in which people could be themselves and prepare for performance. In some ways, what we have done by not (in the US) extending employee privacy rights from the private physical spaces (e.g., lockers) to the employer-sponsored electronic media on which many employees live is to get rid of the backstage, and social media intensifies the self-expression. (Employee self-expression online has long resulted in countless workplace disputes and more recent broad NLRB protection of certain content.)

The big question, restated in Goffman’s terms, is to what extent and how employers will allow employees to have a backstage. Not all of us need a backstage to be creative and productive and authentic, but others are quite clear that they do.  So, as most work becomes more and more temporary and part-time, and employers focus more and more on creating honest, bilateral “alliance” relationships, a concrete question the employer bilingual in Goffman and Hoffman might ask is:

How can I monitor what I need to monitor while still providing enough of a backstage for the ones who need it, enabling the alliances we want?

And the digital workplace privacy policy may even become a document that applicants and employees want to read, because it might speak directly to their ability to have authentic relationships in the workplace.

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