University of Louisville Law Faculty Blog
Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of EmployeesPosted March 29th, 2011 by Ariana R. Levinson
I have just posted a draft of my article, "Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees," forthcoming in volume 114 of the West Virginia Law Review on SSRN. Here is the abstract.
Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees' fundamental right to privacy in their electronic communications. The difficulty of new technology outpacing the law's ability to protect employees' privacy from electronic monitoring by employers is widely acknowledged. Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process. Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely. On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology. Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications. This article describes the details of how this can be done.
I told the students that I would have office hours on Thursdays from 1 to 4, and that they should stop by. I told them they should feel free to come and talk about anything, not just material from the class. The Fulbright program wants the scholars to engage the students in a cultural exchange, not just to lecture. Over a dozen of them took me up on my offer, and sat in my office for over three hours!
Here are some of the questions and comments from students during my first office hours:
- Why did you quit being a lawyer, and start teaching? (because of June and July. Actually, a great question, with an easy answer for me: I fell in love with teaching while I was getting my LL.M.)
- Do you know the show Boston Legal? (to which I responded, I am Denny Crane)
- Who is my favorite actor? (Obviously, William Shatner)
- What do I think about the U.S.'s relationship with Taiwan? (Very complicated (I punted))
- Tell me about your daughters. (They were very interested in hearing about them, and were all eager to meet them.)
- Do you know the history of China? (as I admitted to them, some, but not much. I explained that Americans don't see much about China on the television, the way they see shows about the U.S. However, I cautioned them not to believe everything they see on U.S. TV shows, such as Boston Legal (I shudder to think that anyone would believe that law is actually practiced in the U.S. the way it is depicted on Boston Legal.)
- What do you think about people selling DVDs on the street? (It's bad, but it happens in the U.S., too. I told them I thought that when Chinese artists, musicians and directors started demanding to get paid, then there would be more enforcement of copyright in China. One student summarized it best: when the internal demand for stronger enforcement increases, so will the enforcement of IP laws. As I pointed out to the students, for the first century of US copyright law, we did not grant protection to foreign authors. Dickens never got paid a dime for the publication of his books in the U.S. Once the U.S. started becoming an exporter of copyrighted works, then we began broadening the scope of protection for foreign works).
- What do you think about Open Source software? (I said it's a neat idea that depends entirely on their being a strong copyright law - the GPL only works because it is backed up by copyright law.)
- Do you know Lawrence Lessig? Have you read Lawrence Lessig's book Code? (Yes, but not personally. And Yes, I read "Code", which is an excellent book)
- We would like to show you around Wuhan. Would you like to see the Provincial Museum? (Yes! and can you also take us shopping, so that we don't get ripped off by the street vendors (or as we Fulbrighters put it, paying "the foreigner" tax).
I teach all of my class on the same day, so I started out with a presentation about me and about Louisville and Kentucky. During the next hour, I gave a lecture about the structure of the US legal system, comparing it in part to a civil law system, like the Chinese legal system. I emphasized the role of courts in our system, and particularly the role of the common law. Finally I ended with a quick introduction of the sources of law governing intellectual property. I had a few questions, but I think that the students were both nervous about the first day of class, and worried about their English. We're using an electronic casebook, written by a colleague at Lewis and Clark Law School. This permitted me to be able to acquire copies for all of the students, and easily distribute it to the class. We'll see how it goes: I've never taught using a digital casebook before, so it will be interesting to see how it works.
I have also scheduled office hours for the students. My first one was today, and my office was packed. Many stayed for over three hours. I told them in class that they could stop by and talk about anything, and they sure did. It was a lot of fun.
We went shopping on Saturday at a store that carries "foreign" foods (you know, Frosted Flakes and Skippy). While cruising through the isles, I was suprised to see what I thought was the King of Beers, Budweiser. However, upon closer inspection, it turns out it was a can of Blue Diamond 啤酒 (píjiǔ)(beer), with very similar trade dress to the American classic. That immediately got me in trademark mode, trying to determine if it was in fact infringing. Anheuser-Busch has been fighting a generally losing battle against Budweiser Budvar, including in China, but this beer appears to be Chinese, and does not use the word "budweiser" on the can. However, the color scheme is similar, and the name Blue Diamond empasizes the letters "B" and "D", perhaps to remind a consumer of the term "Bud"? What do you think?
Leona Helmsley was known, in part, for her views on tax policy. "Tax is for the little people," she said.
If Congress's recent moves are any indication, she's right. Income inequality is the highest it's been since just prior to the Great Depression. Consider the impacts of the elimination of the estate tax and December's $318 Billion tax giveaway primarily to the wealthiest Americans in growing the deficit.
Martin Sullivan recently examined the tax returns of the residents of the Helmsley Building in New York, calculated their effective tax rates and compared them to the tax rates of NYC janitors and security guards. The janitors and security guards have higher effective income tax rates than the mllionaires living in the Helmsley Building.
Should we consider the impact of tax policy on deficits as we examine the proposed budget cuts?
The last couple of days has been spent getting our children into school in Wuhan. We found a school online before we left which is not too far from the Zhongnan University campus, called the Wuhan Maple Leaf Foreign Nationals School. We went by on Monday to enroll Lindsey and Alison, and were very impressed with what we saw. The Maple Leaf School has a huge campus, comprising the small foreign nationals part, and the very large school for chinese students wishing to attend middle and high school in English. It's modeled on the educational system in British Columbia, Canada (in fact it's certified by their department of education). Lindsey and Alison are taking classes in English, taught by Canadian teachers. After figuring out how to pay the tuition (in US Dollars) and the uniform and transportation fees (in Chinese RMB), we got the kids enrolled. They attended their first classes Tuesday. Lindsey and Alison had a great time, they really like their teachers (a husband and wife team, as it turns out), and don't even mind wearing the uniforms!
The big challenge happend last night (Tuesday evening for us) when Lindsey handed us the list of supplies she needed for class: Calculator, ruler, highlighters, blue pen, red pen, 8 A4-sized notebooks, and finally, a protractor. So, after contacting the student assigned to me to assist with getting us settled to find out where the supply store was located, I headed off to do my shopping. I found the store (yay, me!), but I was having trouble finding everything. The daughter of the manager came over, and in her best Chinese, asked what I was looking for. OK, so, how do you say "protractor" or "glue" in Chinese? I pulled out my handy iPhone, and using my Pleco Chinese dictionary, we worked our way through the store, and managed to get everything.
Inspiring leader, author of The Blue Sweater, and head of the Acumen Fund, Jaqueline Novogratz talks about immersing yourself in a cause, in a community, and asks "What is the cost of not daring? What is the cost of not trying?" in thus TED Talk: http://www.ted.com/talks/jacqueline_novogratz_inspiring_a_life_of_immers...
Today we visited Yunnan University, and one of our presentations was by Dean Chen Yundong, dean of the of Yunnan University Law School. Dean Chen (Yunnan) was a Fulbright from 2006-07 at American University in Washington. So I have now had the pleasure to meet two law school deans named Chen! His is the first picture.(Dean Chen (Louisville) was also a Fulbright in Iceland, btw). Yunnan University was established in 1922, and it's founder and first faculty sought to establish it as an international university. The second picture is of a room in the Imperial Examination Building, located on campus, where people would take the Imperial Exam to work for the government. They had to stay in the room, without leaving, for 3 days. The bucket in the corner served an obvious purpose. And you thought the bar exam was hard! The third picture is of the building where the examiners graded the exams to see who would be allowed to travel to Beijing to take the final examination.
We also had lectures from several American Fulbright Young Research Scholar grantees, who are here doing research on such issues as Chinese Tobacco usage, Chinese Minorities education issues, teaching drama to Chinese university students, and studying issues in organic and sustainable agriculture. A very impressive bunch.
We've been in Kunming since Saturday, where the US State Department is hosting the Fulbright training program for those of us on half-year Fulbrights. Kunming is a city in western China, reportedly with the highest number of indigenous ethnic minorities (reported at 54 or so), so it is a very diverse city. We are staying at the Green Lake Hotel, near a lake which apparently is named Emerald Green Lake in Chinese. We started with presentations by various officers in the Chengdu consulate, focussing on such issues as political, legal, cultural and environmental issues in China, as well as the consular services provided to US citizens, and Chinese students seeking visas to study in the US. One interesting point: there is no maximum number of student visas set, and last year 130,000 Chinese students came to the US last year to study (15,000 US students came to China in 2009). The presentation by the Environmental, Science, Technology and Health officer on environmental issues in China was also fascinating. Two points stuck out: First, China has some serious environmental challenges to deal with, and second, the China has committed to be a leader in clean energy technology (issues discussed by US Ambassador John Huntsman at presentations in China as well see: http://beijing.usembassy-china.org.cn/ambassador_speeches.html).
On the teaching front, the Fulbright program also brought in the current full-year Fulbrighters to present on their experiences from their first six months in China. One theme that came through was the need to be flexible. One surprising difference is that often much of the planning for events is done only a short time in advance. This includes course schedules. A number of the faculty only found out a few days a head of time what they were going to teach. The other issue is the challenge to have students participate in class, something that, at least in law school, is an expectation. However, we have to be mindful of the challenge for our students of taking a course in a second language, and then to be expected to speak extemporaneously on a topic.
I leave you with a picture from Green Lake Park from this morning. The park was filled with people dancing and doing Tai Chi.
I am staying in Hong Kong for a few days before traveling to Kunming, China for my Fulbright in-country orientation. While touring the city, I came upon several legal structures from the period when Britain controlled Hong Kong. I have posted three of them here. First is Government House, residence of the British Governor until the hand over of Hong Kong to China in 1997. It is now the residence of the Chief Executive of Hong Kong. Second is the former Central Police Station, located interestingly on Hollywood Road. Finally is the Magistracy, which formerly housed the Magistrates Court. These last two structures were part of a compound that also included Victoria Prison and were linked by underground tunnels. I read online that you could be arrested, tried, and serve time, all without seeing the light of day!
Seeing these buildings made me think about the current structure of the Hong Kong legal system. Despite being a part of China, Hong Kong is actually designated a Special Administrative Region, which under the 1984 treaty signed by Britain and China created the "one country, two systems" principle. This treaty created the Basic Law, which for Hong Kong operates as form of constitution. The Basic Law maintains the legal system created under British rule, including the existing court-made common law and rules of equity, and the right to self governance except on matters of foreign affairs and defense. One interesting consequence of the one country, two systems principle is that I have not formally entered China yet. When I leave Hong Kong to travel to Kunming, I will be entering the People's Republic of China for the first time.