Question 161 - CIPP-US discussion

An intrusion upon seclusion tort occurs when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person12.The intrusion does not need to involve a physical trespass, but can also be an electronic or optical intrusion, such as using a webcam to record a person who has a reasonable expectation of privacy2.The intrusion must also cause mental anguish or suffering to the plaintiff2.

In this case, option A would best support an employee claim for an intrusion upon seclusion tort, because the webcam is enabled to record video any time the computer is turned on, regardless of whether the employee is working or not, or whether the employee is in a private or public place. This would be an intentional and highly offensive intrusion into the employee's seclusion or private affairs, and would likely cause the employee distress or anxiety.

Option B would not support an intrusion upon seclusion tort, because the creation and saving of a biometric template based on keystroke dynamics is not an intrusion into the employee's seclusion or private affairs, but rather a data collection and processing activity that may implicate other privacy laws or principles, such as notice, consent, and security3.

Option C would not support an intrusion upon seclusion tort, because the software sending a notification to a supervisor when the employee's mouse is dormant for more than five minutes is not an intrusion into the employee's seclusion or private affairs, but rather a performance monitoring activity that may be justified by the employer's legitimate business interests4.

Option D would not support an intrusion upon seclusion tort, because the webcam recording video of an employee using a company laptop to perform personal business while at a coffee shop during work hours is not an intrusion into the employee's seclusion or private affairs, but rather a misuse of company property and time that may be subject to the employer's policies and disciplinary actions5.Moreover, the employee may not have a reasonable expectation of privacy in a public place like a coffee shop.Reference:1:Intrusion on seclusion - Wikipedia2:Elements of an Intrusion Claim | Digital Media Law Project3: Biometrics - IAPP4: Employee Monitoring - IAPP5: Employee Privacy - IAPP : Privacy in Public Places - IAPP