Hewlett-Packard, Privacy, and Consent

Professor Timothy Glynn of Seton Hall Law School on Hewlett-Packard's pretext-gate:

The recent scandal at Hewlett-Packard has had remarkable staying power. Like most others, I was taken aback by the investigatory methods HP officials used to find the source of boardroom leaks. They crossed the line, certainly as a normative matter, and, if the California indictments are any indication, as a legal one too.

Now let's add a twist: What if members of HP's Board of Directors had agreed in advance to be spied on? (…) Demanding such a waiver is not far removed from reality because of growing concern among firms about leaks of confidential or embarrassing information and the growing ease of publishing such things through blogging, media leaks, etc. (…)

In addition, in terms of existing doctrine, consent is a seemingly intractable problem for those seeking greater privacy protections for employees. Employee consent to monitoring eats away at privacy on the front end by eviscerating the "reasonableness" of their expectation of privacy; to the extent some privacy interest nevertheless remains, consent privileges the intrusion on the back end. Since the vast majority of employers now have some combination of surveillance/monitoring policies and waivers, consent has become a nearly all-consuming black hole, at least with regard to employee communications while at work or on employer-owned communications devices.