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Abstract

The case included many of the classic issues involving the tort of invasion of privacy, such as: In which places does a person have a right of privacy? If a person is in an area that can be viewed by others, does he or she at least have the right to not be photographed or videotaped under certain circumstances? Does it matter that image-enhancing equipment, such as a telephoto lens, is used? Is the purpose of the surveillance relevant? This Article addresses such issues with respect to employers conducting surreptitious physical surveillance of employees. Although such surveillance might, under certain circumstances, be prohibited by any one of a hodgepodge of non-tort sources, including the Fourth Amendment to the United States Constitution, federal legislation, state constitutions, state legislation, and contract law, such sources usually do not apply. The Fourth Amendment restricts only government actors, federal legislation prohibits only surveillance that interferes with employees' self-organizing efforts and activities, state constitutional privacy provisions usually restrain only government actors, few states have enacted legislation prohibiting surveillance, and contract law offers little protection because most employees are employed on an at-will basis without employment contracts prohibiting surveillance. Thus, the tort of invasion of privacy "remains the bedrock protection against unwarranted surveillance." In Part II of this Article, I address why an employer might want to conduct surreptitious physical surveillance of its employees. In Part III, I provide a brief history of the tort of invasion of privacy. In Part IV, I review cases involving the tort as applied to employers' surreptitious physical surveillance of employees and distill bright-line rules from such cases. In Part V, in response to critics of existing law who seek to expand privacy rights (and, in particular, employee privacy rights), I argue that there are insufficient reasons for judicially modifying the rules currently being applied by the courts with respect to employers' surreptitious physical surveillance of employees.

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