Unlike many other countries, the United States does not have a comprehensive federal law that regulates the privacy of private-sector employees. Instead, the privacy protection of employees depends largely on state law, contract law, and tort law. State law may provide specific rights and remedies for employees regarding issues such as drug testing, background checks, electronic monitoring, social media access, and genetic information. Contract law may create obligations and expectations for employers and employees based on written or implied agreements, such as employment contracts, employee handbooks, or collective bargaining agreements. Tort law may allow employees to sue their employers for invasion of privacy, such as intrusion upon seclusion, public disclosure of private facts, false light, or appropriation of name or likeness. The other options are less likely to provide privacy protection to private-sector employees in the United States. The FTC Act primarily regulates the privacy practices of businesses that collect and use consumer data, not employee data. The U.S. Constitution only protects individuals from unreasonable searches and seizures by the government, not by private employers. The HHS only enforces the HIPAA Privacy Rule, which applies to covered entities and business associates that handle protected health information, not to all private-sector employers.Reference:

IAPP CIPP/US Study Guide, Chapter 6: Workplace Privacy

Privacy Rights of Employees Using Workplace Computers in the United States

Employee Privacy Laws

The most important step for the HR department to take when implementing this new software is to provide notice to employees that their emails will be scanned by the software and creating automated profiles. This is because the software involves the collection and use of personal information from employees, which may implicate their privacy rights and expectations. By providing notice, the HR department can inform employees about the purpose, scope, and consequences of the software, as well as their choices and rights regarding their data. Notice is also a key element of transparency and accountability, which are essential principles of privacy management. Providing notice can also help the HR department comply with various privacy laws and regulations that may apply to the software, such as the Electronic Communications Privacy Act (ECPA), the Stored Communications Act (SCA), the Fair Credit Reporting Act (FCRA), and state privacy laws. Notice can also help the HR department avoid potential legal risks and liabilities that may arise from the software, such as claims of invasion of privacy, breach of contract, or violation of employee rights.Reference:

Illinois became the first state to pass a law specifically regulating the collection of biometric data in 2008, when it enacted the Biometric Information Privacy Act (BIPA). BIPA defines biometric identifiers as retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry, and biometric information as any information based on biometric identifiers used to identify an individual. BIPA requires entities that collect, store, or use biometric identifiers or information to obtain informed consent from individuals, provide written policies on data retention and destruction, limit disclosure and sale of biometric data, and protect biometric data using reasonable security measures. BIPA also provides a private right of action for individuals whose biometric data is collected, stored, or used in violation of the law, and allows them to recover statutory damages of $1,000 or actual damages, whichever is greater, for each negligent violation, and $5,000 or actual damages, whichever is greater, for each intentional or reckless violation, as well as attorneys' fees and costs, and injunctive relief.Reference:U.S. Biometrics Laws Part I: An Overview of 2020,Is Biometric Information Protected by Privacy Laws?,Biometric Data Privacy Laws

In 2012, the White House released a report titled ''Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy'', which proposed a Consumer Privacy Bill of Rights based on the Fair Information Practice Principles (FIPPs). The report called for a comprehensive privacy framework that would apply to all commercial sectors and all personal data, regardless of the technology or business model involved. The report also urged Congress to enact legislation to implement the framework and empower the FTC to enforce it. Similarly, the FTC released a report titled ''Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers'', which outlined a set of best practices for businesses to protect consumer privacy and foster innovation. The report also advocated for a comprehensive privacy framework that would cover both online and offline data, and apply to all entities that collect or use consumer data that can be reasonably linked to a specific consumer, computer, or device. The report also recommended that Congress consider enacting baseline privacy legislation and giving the FTC rulemaking authority to implement it. Therefore, both reports can be described as advocating a comprehensive approach to privacy enforcement, rather than a harm-based, self-regulatory, or notice and choice approach.Reference:White House Report,FTC Report,IAPP CIPP/US Study Guide(p. 31-32)

Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the National Security Agency (NSA) is authorized to collect and analyze communications of non-U.S. persons located outside the United States for foreign intelligence purposes. Section 702 allows the NSA to compel U.S.-based service providers, such as AWS or Microsoft, to provide access to data without requiring a warrant from the Foreign Intelligence Surveillance Court (FISC) if certain criteria are met.

Key Aspects of Section 702:

Scope of Surveillance: Section 702 applies to non-U.S. persons located outside the United States. It cannot be used to target U.S. citizens or individuals located within the United States, even if they communicate with non-U.S. persons.

Provider Obligations: The NSA can compel U.S.-based service providers (e.g., AWS, Microsoft) to disclose information about communications involving foreign individuals if the data is relevant to foreign intelligence purposes.

Explanation of the Options:

A. Compel AWS to disclose Jane's email communications with a Taiwanese national residing in Taiwan: Incorrect. Jane is a U.S. citizen, and Section 702 cannot be used to directly target U.S. persons or their communications, even if the other party in the communication is a non-U.S. person.

B. Compel AWS to disclose email communications between two Chinese nationals residing in the EU: Correct. Section 702 allows the NSA to target non-U.S. persons located outside the U.S. without a warrant, even if their communications are hosted by a U.S.-based service provider like AWS. This scenario falls directly under the scope of Section 702.

C. Compel Microsoft to disclose Patrick's Skype calls with a Brazilian national living in Peru: Incorrect. Patrick is a U.S. resident, even though he is a French citizen. Section 702 cannot be used to target individuals who are lawfully residing in the United States.

D. Compel Jane to disclose the PIN code for her corporate mobile phone: Incorrect. Section 702 applies to electronic communications data held by service providers, not to individuals. Compelling an individual to disclose a PIN code would require a different legal authority, such as a court-issued subpoena or warrant.

Legal Framework:

Section 702 of FISA: Provides the NSA with the authority to compel U.S.-based service providers to assist in collecting data on non-U.S. persons located outside the U.S. for foreign intelligence purposes.

Targeting Limitations: Section 702 cannot be used to intentionally target U.S. persons or anyone located within the United States.

Service Providers: Examples include U.S.-based companies such as Amazon AWS, Microsoft, and Google.

Practical Considerations for Jones Labs:

Jones Labs should be aware that:

Data stored with U.S.-based providers (even if located in the EU) may still be subject to Section 702 requests.

International data transfer compliance may require careful consideration of Standard Contractual Clauses (SCCs) or other safeguards to align with EU privacy regulations, such as the GDPR, in light of the extraterritorial nature of U.S. surveillance laws.

Reference from CIPP/US Materials:

FISA Section 702 (50 U.S.C. 1881a): Outlines the legal authority for targeting non-U.S. persons located outside the United States.

IAPP CIPP/US Certification Textbook: Discusses Section 702 and its implications for U.S.-based service providers handling international data.

Schrems II Decision: Highlights conflicts between U.S. surveillance laws and EU privacy laws, particularly for data stored by U.S. companies overseas.