Eric Wieffering and Tony Kennedy Star Tribune Tuesday, February 8, 2000
Northwest Airlines last week began court-authorized searches of the home computers of between 10 and 20 flight attendants, looking for private e-mail and other evidence that the employees helped to organize a sickout at the airline over the New Year's holiday.
The search has since been suspended pending a temporary settlement of the airline's lawsuit against Teamsters Local 2000, the union representing 11,000 flight attendants. But privacy advocates and attorneys not involved with the case say Northwest's action may embolden other companies to more aggressively monitor what employees say and do online from their home computers.
"If Northwest succeeds in gaining access to the hard drives of the home computers of its employees, it will certainly put a chill on the uses employees everywhere make of their home computers," said Beth Givens, director of the Privacy Rights Clearinghouse in San Diego.
Northwest's action comes at a time when bills to protect individual privacy have been introduced at the state and national level. In addition, an increasing number of employees are learning, to their dismay, that companies have the right to monitor their online activities at work. Last month, for example, the New York Times fired 23 employees for sharing bawdy e-mail messages.
Northwest defended the search, noting that a federal court had authorized it.
"In the age we live in, the normal course of discovery includes taking depositions, producing documents and these days more than ever looking into the content of computers," said Jon Austin, a spokesman for Northwest.
"So many documents and communications these days are purely electronic in nature," Austin said.
But companies have rarely sought to search the home computers of their employees. In the past, most such searches usually have been limited to cases involving workers who've been accused of stealing company files, passing on trade secrets to competitors or using insider information to profit on the trading of company stock.
Nor is all speech on the Internet protected by the First Amendment. Increasingly, courts have been willing to help companies crack down on so-called "cybersmearing" -- bad-mouthing companies or their management online.
"Business speech is not subject to the same protections as political speech," said John Roberts, a Minneapolis attorney who specializes in cyberlaw. "You can't say whatever you want about a company."
The get-tough strategy is a new one for Northwest, too. In the spring of 1998, the company's mechanics, frustrated by the pace of contract negotiations, began an unauthorized work slowdown that forced flight delays and hundreds of cancellations. Union leaders disclaimed any knowledge or authorization of the campaign, which employees advocated on Web sites and message boards.
Last month, however, Northwest sued the flight attendants union and some of its members, alleging they had violated federal labor laws by orchestrating a sickout. Judge Frank agreed with Northwest and issued a temporary restraining order that prohibited the union from advocating any work disruptions.
Still, the Northwest case appears to break new ground because, in addition to searching the office computers of union officials, Northwest got permission to search their home computers and the home computers of several rank-and-file employees, including Kevin Griffin and Ted Reeve.
The temporary settlement in the suit does not apply to Griffin and Reeve. The judge agreed to put the suit on hold as it pertains to the union and 19 individuals who are represented by the union's attorneys. But Griffin and Reeve, who are not represented by union attorneys because they are not union officers, are still subject to the company's discovery efforts and to a possible injunction against them.
"This kind of precedent could have a very chilling effect on the exercise of speech rights, and could set a very bad precedent for privacy," said Jerry Berman, executive director for the Center for Democracy and Technology, a leading privacy rights organization based in Washington, D.C.
Like most flight attendants, Griffin and Reeve do not use a computer at work. But they do operate online message boards where flight attendants have vented their frustration toward the company and the union leadership. Griffin's message board, http://www.nwaflightattendants.com, included anonymous postings calling for a sickout, but they were usually followed by urgings from Griffin that participants not advocate illegal activities.
Northwest hired two computer forensic experts from Ernst & Young to copy the hard drives of the 21 individuals named in the lawsuit. The judge limited the search to union activities relating to the sickout or e-mail to 43 individuals, well beyond the number of people named in the original lawsuit.
"This is really an extension beyond established law," said Marshall Tanick, a Minneapolis attorney who specializes in workplace and privacy issues. "How different is this from wiretapping somebody's phone?"
Barbara Harvey, a Detroit-based attorney representing Griffin and Reeve, said the situation has created tremendous anxiety about the possible loss of "highly personal" information. "We are trusting them [Ernst & Young] totally. We don't know them. We didn't hire them. In fact, they were hired by Northwest. But we are put into the position of having to trust them," she said.
Griffin, a veteran Northwest flight attendant based in Honolulu, surrendered his Packard Bell desktop and Fujitsu laptop at the Ernst & Young office in Honolulu. He was met there by two forensic examiners who flew to Honolulu from Washington, D.C., and Texas.
"I didn't think they had the right to come and get your home computer," he said.
The threat of a court-authorized search of home computers has already had one measurable impact: Postings to a rank-and-file Web site that was openly critical of both union management and the company have slowed to a trickle.
"If you're Northwest Airlines, you're probably smiling about that," said Paul Levy, a lawyer for Ralph Nader's Public Citizen Litigation Group, which also represents Griffin and Reeve.
Northwest might not be the only party pleased to see the Web site go quiet. Griffin's Web site and an organized e-mail campaign were instrumental in rallying opposition that defeated a tentative contract agreement that was reached last June and endorsed by the union's top leaders, including Teamsters General President James Hoffa.
Asked why the union didn't fight harder against the effort to search employees' home computers, Billie Davenport, president of Teamsters Local 2000, said the union complied with the discovery request because it felt it had nothing to hide.
"We had voiced concern over people's privacy. There was an invasion-of-privacy issue," Davenport said. "But we believe there was enough privacy protection."
She said Ernst & Young's computer forensic examiners spent two full days in the union's offices last week, copying hard drives.
Griffin said his Web site has had more traffic than ever in the past month, but far fewer postings from visitors. Of those who aren't afraid to comment in the open forum section of the Web site, a much smaller percentage of the writers are identifying themselves, Griffin said. "It's like they are running scared, with good reason," Griffin said.