Date: Fri, 24 Sep 93 15:33:10 EST Errors-To: Comp-privacy Error Handler From: Computer Privacy Digest Moderator To: Comp-privacy@PICA.ARMY.MIL Subject: Computer Privacy Digest V3#046 Computer Privacy Digest Fri, 24 Sep 93 Volume 3 : Issue: 046 Today's Topics: Moderator: Dennis G. Rears Re: Privacy Bill? The Computer Privacy Digest is a forum for discussion on the effect of technology on privacy. The digest is moderated and gatewayed into the USENET newsgroup comp.society.privacy (Moderated). Submissions should be sent to comp-privacy@pica.army.mil and administrative requests to comp-privacy-request@pica.army.mil. Back issues are available via anonymous ftp on ftp.pica.army.mil [129.139.160.133]. ---------------------------------------------------------------------- From: Bill Hefley Subject: Re: Privacy Bill? Organization: Carnegie Mellon University Date: Thu, 23 Sep 1993 15:40:57 EDT In article peterson@CS.ColoState.EDU (james peterson) writes: >I have recently been hearing about a privacy bill being considered >by Congress. Does anyone have the text of this bill to post? Senator Simon's proposed legislation is S.984. This is the third session that a version of this legislation has been introduced. There also exists a House version of this Act (although it is not the same piece of legislation). It is HR.1900, 103rd Congress. Here's the full text of S.984. I've tried to correct any errors from the data entry process, but some may exist (some errors also exist in the legislation itself - things like paragraph 1 following paragraph 1, but no paragraph 2, etc.) ------------------------------------------------------------------------------- 103D CONGRESS S.984 1ST SESSION To prevent abuses of electronic monitoring in the workplace, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 19 (legislative day, APRIL 19), 1993 Mr. SIMON introduced the following bill; which was read twice and referred to the Committee on Labor and Human Resources A BILL To prevent abuses of electronic monitoring in the workplace, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 ives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the "Privacy for Consumers 5 and Workers Act". 6 SEC. 2. DEFINITIONS. 7 As used in this Act: 8 (1) CONTINUOUS ELECTRONIC MONITORING.- 9 The term "continuous electronic monitoring" in- 10 cludes activities in which electronic monitoring of ------------------------------------------------------------- Page 2 1 employees occurs on a continuous basis and is not 2 periodic or random in nature, and such term shall 3 include the periodic inspection of continuous video 4 monitoring from an off-site location, which is used 5 to deter crime and to provide evidence to law en- 6 forcement personnel as well as electronic identifiers 7 or accessors such as electronic card or badge access 8 systems 9 (2) ELECTRONIC MONITORING.- 10 (A) IN GENERAL.-Except as provided in 11 subparagraph (C), the term "electronic mon- 12 itoring" means the collection, storage, analysis, or 13 reporting of informatlon concerning an indi- 14 vidual's activities by means of a computer, elec- 15 tronic observation and supervision, telephone 16 service observation, telephone call accounting, 17 or other form of visual, auditory, or computer- 18 based technology that is conducted by any 19 method other than direct observation by an- 20 other person, including the following methods: 21 Transfer of signs, signals, writing, images, 22 sounds, data, or intelligence of any nature 23 which are transmitted in whole or in part by a 24 wire, radio, electromagnetic, photoelectronic, or 25 photo-optical system. ------------------------------------------------------------- Page 3 1 (B) TELEPHONE CALL ACCOUNTING.-The term 2 "telephone call accounting" means the 3 practice of recording the telephone numbers 4 called by a specific telephone or group of tele- 5 phones, including- 6 (i) the telephone number from which 7 a call is being made, 8 (ii) the telephone number which is 9 being called, 10 (iii) the time when the telephone call 11 was connected, 12 (iv) the time when the telephone call 13 was completed, and 14 (v) identification of the operator, if 15 any, who assisted in placing the telephone 16 call, 17 for the purpose of individual employee evaluations or 18 the setting of production quotas or work perform- 19 ance expectations. 20 (C) EXCLUSION.-The term "electronic 21 monitoring" does not include- 22 (i) the interception of wire, electronic, 23 or oral communications as described in 24 chapter 119 of title 18, United States 25 Code; and ------------------------------------------------------------- Page 4 1 (ii) the electronic transfer of- 2 (I) payroll data, 3 (II) insurance and other benefit 4 data, 5 (III) employee job application 6 data, or 7 (IV) other personnel-related data 8 that an employer may collect, 9 for administrative purposes only. 10 (3) EMPLOYEE.-The term "employee" means 11 any current, former, or leased employee of an em- 12 ployer. 13 (4) EMPLOYER.-The term "employer" means 14 any person who- 15 (A) is engaged in commerce, and 16 (B) who employs employees, 17 and includes any individual, corporation, partner- 18 ship, labor organization, unincorporated association, 19 or any other legal business, the Federal Government, 20 any State (or political subdivision thereof), and any 21 agent of the employer. 22 (5) PERSONAL DATA.-The term "personal 23 data" means any information concerning an em- 24 ployee which, because of name, identifying number, 25 mark, or description, can be readily associated with ------------------------------------------------------------- Page 5 1 a particular individual, and such term includes infor- 2 mation contained in printouts, forms, or written 3 analyses or evaluations. 4 (6) PROSPECTIVE EMPLOYEE.-The term "pro- 5 spective employee" means an individual who has ap- 6 plied for a position of employment with an employer. 7 (7) TELEPHONE SERVICE OBSERVATION.-The 8 term "telephone service observation" means the 9 practice of listening to or recording telephone calls 10 being made by, or received by, an employee in order 11 to monitor the quality of service provided by the em- 12 ployee. 13 (8) SECRETARY.-The term "Secretary" means 14 the Secretary of Labor. 15 SEC. 3. GENERAL REQUIREMENTS. 16 (a) ENGAGING IN ELECTRONIC MONITORING.-An 17 employer may engage in electronic monitoring of the em- 18 ployer's employees only so long as the employer complies 19 with the provisions of this Act and other applicable law, 20 including section 15. 21 (b) REVIEW AND USE.-An employer may review 22 data obtained by the electronic monitoring of the employ- 23 er's employees only if the employer meets the requirements 24 of section 6, and may use such data only if the employer 25 meets the requirements of section 8. ------------------------------------------------------------- Page 6 1 SEC. 4. NOTICE REQUIREMENTS. 2 (a) SECRETARY'S NOTICE.- 3 (1) IN GENERAL.-The Secretary shall prepare, 4 have printed, and distribute to employers a notice 5 that will inform employees- 6 (A) that an employer engages in or may 7 engage in electronic monitoring of employees 8 and specifies the circumstances (including the 9 electronic monitoring and exception described in 10 section 5) under which an employee is or is not 11 entitled to additional notice under this section; 12 and 13 (B) of the rights and protections provided 14 to employees by this Act. 15 (2) POSTING OF NOTICE.-Each employer who 16 engages in electronic monitoring shall post and 17 maintain the notice required in paragraph (1) in 18 conspicuous places on its premises where notices to 19 employees are customarily posted. 20 (b) EMPLOYER'S SPECIFIC NOTICE.-Each employer 21 shall provide to each employee who will be electronically 22 monitored, and the exclusive bargaining representative, if 23 any, prior written notice describing the following regard- 24 ing the electronic monitoring of such employees: 25 (1) The forms of electronic monitoring to be 26 used. ------------------------------------------------------------- Page 7 1 (2) The personal data to be collected. 2 (3) The hours and days per calendar week that 3 electronic monitoring will occur. 4 (4) The use to be made of personal data col- 5 lected. 6 (5) Interpretation of printouts of statistics or 7 other records of information collected through elec- 8 tronic monitoring if the interpretation or records 9 may affect one or more of the employer's employees. 10 (6) Existing production standards and work 11 performance expeGtations. 12 (7) Methods for determining production stand- 13 ards and work performance expectations based on 14 electronic monitoring statistics if the methods affect 15 the employees. 16 (8) A description of the electronic monitoring. 17 (9) A description of the exception that is au- 18 thorized under section 5(c)(1) to be undertaken 19 without notice. 20 (C) EMPLOYER'S NOTICE TO PROSPECTIVE EMPLOY- 21 EES.- 22 (1) IN GENERAL.-Each employer shall notify a 23 prospective employee at the first personal interview 24 of existing forms of electronic monitoring conducted ------------------------------------------------------------- Page 8 1 by the employer which may affect the prospective 2 employee if such employee is hired by the employer. 3 (2) SPECIFIC NOTICE.-Each employer, upon 4 request by a prospective employee or when the em- 5 ployer offers employment to a prospective employee, 6 shall provide the prospective employee with the writ- 7 ten notice described in subsection (b). 8 (d) CUSTOMER NOTICE.-Employers who engage in 9 telephone service observation shall inform customers who 10 may be subject to such telephone service observation of 11 this practice in any recorded message or automated at- 12 tendant used in connection with customer telephone calls. 13 If the employer does not use such a recorded message or 14 automated attendant, the employer shall place in each of 15 its customer bills a statement that the employer is engag- 16 ing in such observation. 17 (e) PUBLIC NOTICE.-If an employer engages in elec- 18 tronic monitoring of members of the public who are not 19 customers of the employer, the employer shall notify such 20 individuals of such electronic monitoring. Such notice may 21 take the form that is reasonably calculated to reach mem- 22 bers of the public who may be affected. 23 (f) GOVERNMENT NOTICE.-If a federal agency en- 24 gages in telephone service observation, the agency shall 25 provide the public, upon the public's telephone contact of ------------------------------------------------------------- Page 9 1 the Federal agency, a reasonable opportunity to not be 2 a part of or included in any such observation. 3 (g) RULE OF CONSTRUCTION.-Notice provided 4 under this Act shall not be construed as constituting con- 5 sent under chapter 119 of title 18, United States Code. 6 SEC. 5. PERIODIC OR RANDOM ELECTRONIC MONITORING. 7 (a) GENERAL RULE.-An employer may engage in 8 electronic monitoring of any of the employer's employees 9 on a periodic or random basis as authorized in subsection 10 (b). 11 (b) AUTHORITY.- 12 (1) NEW EMPLOYEES.-An employer may en- 13 gage in periodic or random electronic monitoring of 14 an employer's employee if the cumulative total pe- 15 riod of such employee's employment with the em- 16 ployer is not more than 60 working days. 17 (2) WORK GROUPS.-An employer may engage 18 in electronic monitoring of a work group of employ- 19 ees on a periodic or random basis for not more than 20 2 hours in any calendar week. Except as otherwise 21 provided in this subsection, the notice required 22 under section 4(b) to each of the employer's employ- 23 ees within such work group for such electronic mon- 24 itoring shall be provided to each of the employer's 25 employee within the work group at least 24 hours ------------------------------------------------------------- Page 10 1 but not more than 72 hours prior to engaging in 2 such electronic monitoring. For purposes of this sub- 3 section, the term "work group" means a group of 4 employees employed in a single facility and engaged 5 in substantially similar work at a common time and 6 in physical proximity to each other. 7 (3) OTHER EMPLOYEES.-An employer may not 8 engage in periodic or random electronic monitoring 9 of an employee with a cumulative employment period 10 of at least 5 years with the employer. 11 (C) EXCEPTION TO NOTICE REQUIREMENT.- 12 (1) SPECIAL ELECTRONIC MONITORING.-Sub- 13 ject to paragraph (2), an employer, other than the 14 Federal Government or State or political subdivision 15 thereof, who has a reasonable suspicion that an em- 16 ployer's employee is engaged in or is about to en- 17 gage in conduct which- 18 (A) violates criminal or civil law, or con- 19 stitutes willful gross misconduct; and 20 (B) has a significant adverse effect involv- 21 ing economic loss or injury to the employer or 22 the employer's employees, 23 the employer may engage, on the employer's work- 24 site, in electronic monitoring of such employee or of 25 an area in which the actions described in subpara- ------------------------------------------------------------- Page 11 1 graphs (A) and (B) occur without providing the no- 2 tice required by section 4(b), 5(a) or 5(b), and with- 3 out regard to sections 9, 10(a), and 11(2). 4 (2) STATEMENT.-Before engaging in the elec- 5 tronic monitoring described in paragraph (1), an 6 employer shall execute a statement setting forth- 7 (A) with particularity the conduct that is 8 being electronically monitored and the basis for 9 the electronic monitoring; 10 (B) an identification of the specific eco- 11 nomic loss or injury to the business of the em- 12 ployer or the employer's employees resulting 13 from such conduct or the injury to the interests 14 of such employer or employer's employees; and 15 (C) that the employer is in compliance 16 with section 5(c)(1). 17 The employer shall sign the statement and retain it 18 for 3 years from the date the electronic monitoring 19 began or until judgment is rendered in an action 20 brought under section 12(c) by an employee affected 21 by such electronic monitoring, whichever is later. 22 SEC. 6. REVIEW OF CONTINUOUS ELECTRONIC MONITOR- 23 ING. 24 (a) REVIEW DURING ELECTRONIC MONITORING.- 25 No employer may review data obtained by continuous elec- ------------------------------------------------------------- Page 12 1 tronic monitoring of the employer's employees on a peri- 2 odic or random basis, unless the electronic data was ob- 3 tained from the use of an electronic identirler, locator, or 4 accessor, such as an electronic card or badge access sys- 5 tem, telephone call accounting system, or the data is con- 6 tinuously monitored by an employer or appears simulta- 7 neously on multiple television screens or sequentially on 8 a single screen. 9 (b) REVIEW AFTER ELECTRONIC MONITORING.-An 10 employer may review data obtained by continuous elec- 11 tronic monitoring of the employer's employees after the 12 electronic monitoring was completed only if review was 13 limited to specific data that the employer has reason to 14 believe contains information relevant to an employee's 15 work. 16 SEC. 7. EMPLOYEE REVIEW OF RECORDS. 17 (a) IN GENERAL.-Except as provided in subsection 18 (b), each employer shall provide the employer's employee 19 (or the employee's authorized agent) and the exclusive 20 bargaining representative, if any, with a reasonable oppor- 21 tunity to review and, upon request, a copy of all personal 22 data obtained or maintained by electronic monitoring of 23 the employee. 24 (b) EXCEPTION.- ------------------------------------------------------------- Page 13 1 (1) IN GENERAL.-Except as provided in para- 2 graph (2), an employer is not required to provide the 3 employer's employee (or the employee's authorized 4 agent) or the exclusive bargaining representative, if 5 any, a reasonable opportunity to review data that 6 are obtained by electronic monitoring described in 7 section 5(c)(1). 8 (2) REVIEW PERMITTED.-If- 9 (A) the investigation by an employer with 10 respect to electronic monitoring described in 11 section 5(c)(1) that was conducted on the em- 12 ployer's employee has been completed, or 13 (B) disciplinary action has been initiated 14 by an employer against the employer's employee 15 who was the subject of such electronic monitor- 16 ing, 17 whichever occurs first, such employer shall promptly 18 provide such employee (or the employee's authorized 19 agent) and exclusive bargaining representative, if 20 any, with a reasonable opportunity to review and 21 upon request, obtain a copy of, the personal data, 22 and any interpretation of such data obtained from 23 such electronic monitoring. ------------------------------------------------------------- Page 14 1 SEC.8.USE OF DATA COLLECTED BY ELECTRONIC MON- 2 ITORING. 3 (a) EMPLOYER ACTIONS.-An employer shall not 4 take any action against an employee on the basis of per- 5 sonal data obtained by electronic monitoring of such em- 6 ployee unless the employer has complied with all the re- 7 quirements of this Act. 8 (b) DATA SHALL NOT BE USED AS SOLE BASIS FOR 9 EVALUATION OR PRODUCTION QUOTAS.-An employer 10 shall not use quantitative data on an employee that is ob- 11 tained by electronic monitoring and that records the 12 amount of work performed by such employee within a spe- 13 cific time as the sole basis for- 14 (1) individual employee performance evaluation; 15 or 16 (2) setting production quotas or work perform- 17 ance expectations, 18 unless an employee is not working at a facility of an em- 19 ployer and transmits the employee's work to the employer 20 electronically, and such data is the only basis available to 21 such employer for such purposes. 22 SEC. 9. ACCESS TO DATA. 23 (a) IN GENERAL.-When an employer has an imme- 24 diate business need for specific data and if the employer's 25 employee who maintains such data is not available, the 26 employer may access such data if- ------------------------------------------------------------- Page 15 1 (1) the data is alphanumeric data and does not 2 include data obtained by the aural or visual monitor- 3 ing of the employer's employees or the interception 4 of the employer's employee communications; 5 (2) the data will not be used for the purpose of 6 discipline or performance evaluation; and 7 (3) the employer notifies the employee who 8 maintains such data that the employer has accessed 9 such data and provides such notice within a reason- 10 able time after the access has occurred. 11 (b) DEFINITION.-AS used in subsection (a), the 12 term "alphanumeric data" means data consisting entirely 13 of letters, numbers, and other symbols. Such term does 14 not include visual images, audio impressions or data that 15 can be used to create visual or auditory information. 16 SEC. 10. PRIVACY PROTECTIONS. 17 (a) WORK RELATED.-NO employer may inten- 18 tionally collect personal data about an employee through 19 electronic monitoring if the data are not confined to the 20 employee's work, unless the employee is a customer of the 21 employer at the time of the electronic monitoring. 22 (b) PRIVATE AREAS.-NO employer may engage in 23 electronic monitoring in- 24 (1) bathrooms; 25 (2) locker rooms; or ------------------------------------------------------------- Page 16 1 (3) dressing rooms. 2 (c) FIRST AMENDMENT RIGHTS.- 3 (1) IN GENERAL.-An employer shall not inten- 4 tionally engage in electronic monitoring of an em- 5 ployee when the employee is exercising First Amend- 6 ment rights, and an employer shall not intentionally 7 use or disseminate personal data obtained by elec- 8 tronic monitoring of an employee when the employee 9 is exercising First Amendment Rights. 10 (2) EXCEPTION.-Electronic monitoring by an 11 employer whose purpose and principal effect is to 12 collect data about the work of an employee of the 13 employer is not prohibited by paragraph (1) because 14 it collects some incidental data concerning the exer- 15 cise of an employee's First Amendment rights. 16 (d) DISCLOSURE.-An employer shall not disclose 17 personal data obtained by electronic monitoring to any 18 person or other employer or business entity except to (or 19 with the prior written consent of) the individual employee 20 to whom the data pertain, unless the disclosure would 21 be- 22 (1) to officers and employees of the employer 23 who have a legitimate need for the information in 24 the performance of their duties; ------------------------------------------------------------- Page 17 1 (2) to a law enforcement agency pursuant to a 2 warrant issued under the Federal Rules of Criminal 3 Procedure, an equivalent State warrant, a grand 4 jury subpoena, or an administrative subpoena au- 5 thorized by a Federal or State statute; 6 (3) to the public if the data contain evidence of 7 illegal conduct by a public official or have a direct 8 and substantial effect on public health or safety; or 9 (4) to the exclusive bargaining representative, if 10 any. 11 (e) ISSUANCE OF COURT ORDER.-A court order for 12 disclosure under subsection (b) or (c) shall issue only if 13 the law enforcement agency demonstrates that there is 14 reason to believe the contents of the data are relevant to 15 a legitimate law enforcement inquiry. In the case of a 16 State governmental authority, such a court order shall not 17 issue if prohibited by the laws of such State. A court issu- 18 ing an order pursuant to this section, on a motion made 19 promptly by the service provider, may quash or modify 20 such order, if the data requested are unusually voluminous 21 in nature or compliance with such order would cause an 22 undue burden on the employer. 23 (f) EXCEPTION.-Electronic monitoring, including 24 security cameras, whose purpose and principal effect is to 25 collect data permitted hy this Act is not prohibited by sub- ------------------------------------------------------------- Page 18 1 section (a) because it collects some data that is not con- 2 fined to such employee's work or because it collects some 3 data concerning the exercise of an employee's First 4 Amendment rights. 5 SEC. 11. PROHIBITIONS. 6 No employer may- 7 (1) violate any requirement of this Act, 8 (2) engage in video monitoring with a video 9 camera that is not visible to the subject of the elec- 10 tronic monitoring, except in the case of electronic 11 monitoring described in section 5(c)(1), 13(a), 12 13(b), or 13(c)(2), 13 (3) interfere with, or deny the exercise or the 14 attempted exercise by, an employee of any right pro- 15 vided by section 10(c), or 16 (4) discharge, discipline, or in any manner dis- 17 criminate against an employee with respect to the 18 employee's compensation or terms, conditions, or 19 privileges of employment because the employee (or 20 any person acting pursuant to a request of the em- 21 ployee) has- 22 (A) instituted any proceeding relating to a 23 violation of this Act, 24 (B) has testified or is about to testify in 25 any such proceedings, or ------------------------------------------------------------- Page 19 1 (C) disclosed information that the em- 2 ployee reasonably believes evidences a violation 3 of this Act. 4 SEC. 12. ENFORCEMENT PROVISIONS. 5 (a) CIVIL PENALTIES.- 6 (1) IN GENERAL.-Subject to paragraph (2), 7 any employer who violates any provision of this Act 8 may be assessed a civil penalty of not more than 9 $10,000 for each such violation. 10 (2) CONSIDERATIONS.-In determining the 11 amount of any penalty under paragraph (1), the 12 Secretary shall take into account the previous record 13 of the person in terms of compliance with this Act 14 and the gravity of the violation. 15 (3) ASSESSMENT AND COLLECTION.-Any civil 16 penalty under this subsection shall be assessed by 17 the Secretary and shall be collected in the same 18 manner as is required by subsections (b) through (e) 19 of section 503 of the Migrant and Seasonal Agricul- 20 tural Worker Protection Act (29 U.S.C. 1853) with 21 respect to civil penalties assessed under subsection 22 (a) of such section. 23 (b) ACTIONS BY THE SECRETARY.-The Secretary 24 may bring an action under this section to restrain viola- 25 tions of this Act. The Solicitor of Labor may appear for ------------------------------------------------------------- Page 20 1 and represent the Secretary in any litigation brought 2 under this Act. In any action brought under this section, 3 the district courts of the United States shall have jurisdic- 4 tion, for cause shown, to issue temporary or permanent 5 restraining orders and injunctions to require compliance 6 with this Act, including such legal and equitable or declar- 7 atory relief incident thereto as may be appropriate, includ- 8 ing employment, reinstatement, promotion, the payment 9 of lost wages and benefits, and reasonable attorney fees 10 and other litigation costs reasonably incurred. 11 (c) PRIVATE CIVIL ACTIONS.- 12 (1) IN GENERAL.-An employer who violates 13 this Act shall be liable to the employee or prospec- 14 tive employee affected, or any other person ag- 15 grieved, by such violation. Such employer shall be 16 liable for such legal and equitable or declaratory re- 17 lief as may be appropriate, including employment, 18 reinstatement, promotion, and the payment of lost 19 wages and benefits. 20 (2) JURISDICTION.-An action to recover the li- 21 ability prescribed in paragraph (1) may be main- 22 tained against the employer in any Federal or State 23 court of competent jurisdiction by any person for or 24 on behalf of an employee, prospective employee or 25 other aggrieved person. ------------------------------------------------------------- Page 21 1 (3) LIMITATION.-NO such action may be com- 2 menced more than 3 years after the date -- 3 (A) the employee, prospective employee, or 4 other aggrieved person knew of, or 5 (B) the employee, prospective employee, or 6 other aggrieved person could reasonably be ex- 7 pected to know of, 8 the alleged violation. 9 (4) COSTS.-The court shall allow the prevail- 10 ing party (other than the Federal Government) rea- 11 sonable costs, including attorney's fees and expert 12 witness fees. 13 (d) WAIVER OF RIGHTS PROHIBITED.-The rights 14 and procedures provided by this Act may not be waived 15 by contract or otherwise, unless such waiver is part of a 16 written settlement agreed to and signed by the parties to 17 a pending action or complaint under this Act. 18 SEC. 13. APPLICATION. 19 (a) LAW ENF0RCEMENT.-This Act shall not apply 20 to electronic monitoring administered by law enforcement 21 agencies as may otherwise be lawfully permitted under 22 criminal investigations. 23 (b) WORKMEN'S COMPENSATION.-This Act shall not 24 apply to electronic monitoring conducted by employers in 25 connection with the investigation of a workers compensa- ------------------------------------------------------------- Page 22 1 tion claim unless there is reasonable suspicion of fraud 2 or the claim involves at least $25,000. 3 (c) REQUIRED ELECTRONIC MONITORING.-This Act 4 (other than sections 4(a), 4(b)(1), 4(b)(2), 4(b)(4), 7, 8, 5 9, and 10) shall not apply to electronic monitoring- 6 (1) conducted by an employer pursuant to Fed- 7 eral law (including regulations) governing public 8 safety or security for public transportation; 9 (2) conducted by or for- 10 (A) the intelligence community, as defined ll in Executive Order 12333 (or successor order); 12 or 13 (B) intelligence community contractors 14 with respect to contracts that bear upon na- 15 tional security information, as defined by Exec- 16 utive Order 12356 (or successor order); 17 (3) conducted by an employer registered under 18 section 6, 15, 15A, 15B, 15C, or 17A of the Securi- 19 ties Exchange Act of 1934 (15 U.S.C. 78 et seq.), 20 section 8(a) of the Investment Company Act of 1940 21 (15 U.S.C. 80a-1(a)), or sections 202(a)(11) and 22 203(a) of the Investment Advisers Act of 1940 (15 23 U.S.C. 80b-2(a)(11) and 80b-3(a)), conducted by 24 an employer or a person associated with an employer 25 registered or exempt from such registration under ------------------------------------------------------------- Page 23 1 section 4d, 4e, 4k, or 4m of the Commodity Ex- 2 change Act (7 U.S.C. 6d, 6e, 6k, or 6m), conducted 3 by a self-regulatory organization or its affiliated 4 clearinghouse designated, registered, or exempt from 5 registration under section 6 or 17 of such Act (7 6 U.S.C. 8, 21), or conducted by an employer who pro- 7 vides an electronic trading system or other facilities 8 for one or more self-regulatory organizations des- 9 ignated, registered, or exempt from registration 10 under section 6 or 17 of such Act (7 U.S.C. 8, 21), 11 as long as such monitoring is confined to manage- 12 ment or professional employees with significant fi- 13 nancial responsibility that involves the use of inde- 14 pendent judgment. 15 (4) conducted by an employer that is a financial 16 institution, as defined in section 20 of title 18, Unit- 17 ed States Code or subparagraph (A), (B), (C), (D), 18 or (F) of section 5312(a)(2) of title 31, United 19 States Code, as long as such monitoring is confined 20 to management or professional employees with sig- 21 nificant financial responsibility that involves the use 22 of independent judgment; or 23 (5) conducted only to the extent necessary to 24 ensure an employee provides the notices required by 25 the Truth in Lending Act and the regulation under ------------------------------------------------------------- Page 24 1 such Act designated Regulation Z, the Equal Credit 2 Opportunity Act and the regulation under such Act 3 designated Regulation B, the Fair Credit Reporting 4 Act, the Fair Credit Billing Act, the Fair Debt Col- 5 lection Practices Act, the rule of the Federal Trade 6 Commission on credit practices, the regulations and 7 consent or(lers of the Federal Trade Commission on 8 unfair acts and practices, the Telephone Consumer 9 Protection Act of 1991 and regulations under such 10 Act, and all corresponding State laws and regula- 11 tions. 12 (d) THIRD PARTY.- 13 (1) MONITORING FOR ANOTHER PERSON.-A 14 person who engages in electronic monitoring may 15 not perform electronic monitoring for another person 16 unless the requirerments of this Act are complied 17 with. 18 (2) USE OF DATA.-A person who contracts 19 with or otherwise obtains the services of a third 20 party to electronically monitor the employees of such 21 person may not use the data obtained from such 22 monitoring unless the requirements of this Act are 23 complied with. ------------------------------------------------------------- Page 25 1 SEC. 14. REGULATIONS. 2 The Secretary shall, within 6 months after the date 3 of the enactment of this Act, issue regulations to carry 4 out this Act. 5 SEC. 15. PREEMPTION. 6 This Act shall not be construed to restrict, limit, or 7 eliminate a requirement of the Federal Government, or a 8 State or political subdivision of a State or of a collective 9 bargaining agreement relating to privacy or electronic 10 monitoring that is more stringent than any requirement 11 of this Act. 12 SEC. 16. COVERAGE OF EMPLOYEES OF THE HOUSE OF 13 REPRESENTATIVEs AND SENATE. 14 (a) DEFINITIONS.-For purposes of this section- 15 (1) the term "employee" means any current, 16 prospective, or former employee of an employing au- 17 thority or any leased employee; 18 (2) the term "employing authority"- 19 (A) has the meaning given it in the Fair 20 Employment Practices Resolution, except that 21 with respect to a position on the minority staff 22 of a committee, such term means the ranking 23 minority member of such committee; and 24 (B) includes Senate employees as defined 25 in section 301(c)(1) of the Civil Rights Act of 26 1991; and ------------------------------------------------------------- Page 26 1 (3) the term "Fair Employment Practices Reso- 2 lution" means- 3 (A) House Resolution 558 of the One 4 Hundredth Congress, as adopted October 4, 5 1988, and incorporated into Rule LI of the 6 Rules of the House of Representatives of the 7 One Hundred Second Congress; or 8 (B) any other provision that continues in 9 effect the provisions of such resolution. 10 (b) APPLICATION.-With the exception of section 12, 11 this Act (including the substantive requirements of imple- 12 menting regulations issued under section 14) shall apply 13 to employees and to employing authorities. 14 (c) ADMINISTRATION.- 15 (1) HOUSE OF REPRESENTATIVES.-The rem- 16 edies and procedures of the Fair Employment Prac- 17 tices Resolution shall apply with respect to a viola- 18 tion of this Act as it is made applicable by sub- 19 section (b) to employees of the employing authorities 20 described in subsection (a)(2)(A). The Office of Fair 21 Employment Practices may, in addition to those 22 remedies available under the Fair Employment 23 Practices Resolution, assess such an employing au- 24 thority a civil penalty of not more than $10,000 for 25 each violation. In determining the amount, the Of- ------------------------------------------------------------- Page 27 1 fice shall take into account the previous record of 2 the employing authority involved in terms of compli- 3 ance with this section and the gravity of the viola- 4 tion. Any such penalty collected shall be paid into 5 the Treasury of the United States. 6 (2) SENATE.-The remedies and procedures 7 utilized by the Office of Senate Fair Employment 8 Practices shall apply with respect to a violation of 9 this Act as it is made applicable by subsection (b) 10 to employees of the employing authorities described 11 in subsection (a)(2)(B). The Office of Senate Fair 12 Employment Practices may, in addition to those 13 remedies otherwise available, assess such an employ- 14 ing authority a civil penalty of not more than 15 $10,000 for each violation. In determining the 16 amount, the Office shall take into account the pre- 17 vious record of the employing authority involved in 18 terms of compliance with this section and the gravity 19 of the violation. Any such penalty collected shall be 20 paid into the Treasury of the United States. 21 (d) WAIVER OF RIGHTS PROHIBITED.-The rights 22 and procedures provided by this Act may not be waived 23 by contract or otherwise, unless such waiver is part of a 24 written settlement agreed to and signed by the parties to 25 a pending action or complaint under this Act. ------------------------------------------------------------- Page 28 1 (e) NOTICE.-Each employing authority shall post 2 and keep posted in conspicuous places on its premises a 3 notice that shall be- 4 (1) with respect to the employing authorities 5 described in subsection (a)(2)(A), prepared by the 6 Office of Fair Employment Practices; and 7 (1) with respect to the employing authorities 8 described in subsection (a)(2)(B), prepared by the 9 Office of Senate Fair Employment Practices; 10 setting forth such information as each such Office consid- 11 ers to be appropriate to carry out this section. Such notice, 12 at a minimum, shall provide the same information as that 13 required under section 4(a). 14 (f) RULEMAKING.-Subsection (c) is enacted as an 15 exercise of the rulemaking power of the House of Rep- 16 resentatives and the Senate, respectively, with full recogni- 17 tion of the right of the House of Representatives and the 18 Senate to change its rules in the same manner, and to 19 the same extent, as in any other rule of the House of Rep- 20 resentatives and the Senate. 21 (g) ENFORCEMENT.-Notwithstanding any other 22 provision of this Act, no officer or employee of the execu- 23 tive branch of the Federal Government shall have author- 24 ity to administer, interpret, or enforce this section. ------------------------------------------------------------- Page 29 1 SEC. 17. EFFECTIVE DATE. 2 This Act shall take effect on 6 months after the date 3 of the enactment of this Act, except that an employer who 4 is engaged in electronic monitoring on the expiration of 5 such 6 months shall have 60 calendar days after such expi- 6 ration to provide each affected employee with the notice 7 required by this Act. ----------------------------------------------------------------------- Bill Hefley, Software Engineering Institute, Carnegie Mellon University Pittsburgh, PA 15213 U.S.A. Office: (412) 268-7793 , Fax: (412) 268-5758, internet: weh@sei.cmu.edu ------------------------------ End of Computer Privacy Digest V3 #046 ******************************