II

106TH CONGRESS

2D SESSION S. 2898

To amend title 18, United States Code, to provide for the disclosure of

electronic monitoring of employee communications and computer usage

in the workplace.

IN THE SENATE OF THE UNITED STATES

JULY 20, 2000

Mr. SCHUMER introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to provide for the

disclosure of electronic monitoring of employee communications and computer usage in the workplace.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Notice of Electronic

5 Monitoring Act’’.

6 SEC. 2. ELECTRONIC MONITORING OF EMPLOYEE COMMU7 NICATIONS AND COMPUTER USAGE IN THE

8 WORKPLACE.

9 (a) ELECTRONIC MONITORING.—
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1 (1) IN GENERAL.—Chapter 121 of title 18,

2 United States Code, is amended—

3 (A) by redesignating section 2711 as sec4 tion 2712; and

5 (B) by inserting after section 2710 the fol6 lowing new section 2711:

7 ‘‘§ 2711. Electronic monitoring in the workplace

8 ‘‘(a) IN GENERAL.—(1) Except as provided in sub9 section (c), an employer who intentionally, by any elec10 tronic means, reads, listens to, or otherwise monitors any

11 wire communication, oral communication, or electronic

12 communication of an employee of the employer, or other13 wise monitors the computer usage of an employee of the

14 employer, without first having provided the employee no15 tice meeting the requirements of subsection (b) shall be

16 liable to the employee for relief as provided in subsection

17 (d).

18 ‘‘(2) Not later than one year after first providing no19 tice of electronic monitoring under paragraph (1), and an20 nually thereafter, an employer shall provide notice meeting

21 the requirements of subsection (b) to all employees of the

22 employer who are subject to such electronic monitoring.

23 ‘‘(3) Before implementing a material change in an

24 electronic monitoring practice described in paragraph (1),

25 an employer shall provide notice meeting the requirements
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1 of subsection (b) to all employees of the employer who are

2 subject to electronic monitoring covered by that paragraph

3 as a result of the change.

4 ‘‘(b) NOTICE.—A notice meeting the requirements of

5 this subsection is a clear and conspicuous notice, in a man6 ner reasonably calculated to provide actual notice,

7 describing—

8 ‘‘(1) the form of communication or computer

9 usage that will be monitored;

10 ‘‘(2) the means by which such monitoring will

11 be accomplished and the kinds of information that

12 will be obtained through such monitoring, including

13 whether communications or computer usage not re14 lated to the employer’s business are likely to be

15 monitored;

16 ‘‘(3) the frequency of such monitoring; and

17 ‘‘(4) how information obtained by such moni18 toring will be stored, used, or disclosed.

19 ‘‘(c) EXCEPTION.—An employer may conduct elec20 tronic monitoring described in subsection (a) without the

21 notice required by subsection (b) if the employer has rea22 sonable grounds to believe that—

23 ‘‘(1) a particular employee of the employer is

24 engaged in conduct that—
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1 ‘‘(A) violates the legal rights of the em2 ployer or another person; and

3 ‘‘(B) involves significant harm to the em4 ployer or such other person; and

5 ‘‘(2) the electronic monitoring will produce evi6 dence of such conduct.

7 ‘‘(d) CIVIL ACTION.—(1) Any person aggrieved by

8 any act in violation of this section may bring an action

9 in a United States district court.

10 ‘‘(2) Subject to paragraph (3), the court in an action

11 under this subsection may award—

12 ‘‘(A) actual damages, but not less than liq13 uidated damages in the amount of $5,000;

14 ‘‘(B) punitive damages;

15 ‘‘(C) reasonable attorneys’ fees and other litiga16 tion costs reasonably incurred; and

17 ‘‘(D) such other preliminary and equitable relief

18 as the court determines to be appropriate.

19 ‘‘(3)(A) The amount of monetary damages awarded

20 an employee under paragraph (2) may not exceed

21 $20,000.

22 ‘‘(B) The aggregate amount of monetary damages

23 awarded against an employer under paragraph (2) for a

24 given violation of this section may not exceed $500,000.
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1 ‘‘(4) No action may be brought under this subsection

2 unless such action is begun within 2 years from the date

3 of the act complained of or the date of discovery of the

4 act complained of, whichever is later.’’.

5 (2) CLERICAL AMENDMENT.—The table of sec6 tions at the beginning of that chapter is amended by

7 striking the item relating to section 2711 and insert8 ing the following new items:

‘‘Sec. 2711. Electronic monitoring in the workplace.

‘‘Sec. 2712. Definitions for chapter.’’.

9 (b) EFFECTIVE DATE.—The amendments made by

10 subsection (a) shall take effect 120 days after the date

11 of the enactment of this Act.

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