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CIPP-US Exam - Question 74


SCENARIO -

Please use the following to answer the next question:

Larry has become increasingly dissatisfied with his telemarketing position at SunriseLynx, and particularly with his supervisor, Evan. Just last week, he overheard Evan mocking the state’s Do Not Call list, as well as the people on it. “If they were really serious about not being bothered,” Evan said, “They’d be on the national DNC list. That’s the only one we’re required to follow. At SunriseLynx, we call until they ask us not to.”

Bizarrely, Evan requires telemarketers to keep records of recipients who ask them to call “another time.” This, to Larry, is a clear indication that they don’t want to be called at all. Evan doesn’t see it that way.

Larry believes that Evan’s arrogance also affects the way he treats employees. The U.S. Constitution protects American workers, and Larry believes that the rights of those at SunriseLynx are violated regularly. At first Evan seemed friendly, even connecting with employees on social media. However, following Evan’s political posts, it became clear to Larry that employees with similar affiliations were the only ones offered promotions.

Further, Larry occasionally has packages containing personal-use items mailed to work. Several times, these have come to him already opened, even though this name was clearly marked. Larry thinks the opening of personal mail is common at SunriseLynx, and that Fourth Amendment rights are being trampled under Evan’s leadership.

Larry has also been dismayed to overhear discussions about his coworker, Sadie. Telemarketing calls are regularly recorded for quality assurance, and although Sadie is always professional during business, her personal conversations sometimes contain sexual comments. This too is something Larry has heard Evan laughing about. When he mentioned this to a coworker, his concern was met with a shrug. It was the coworker’s belief that employees agreed to be monitored when they signed on. Although personal devices are left alone, phone calls, emails and browsing histories are all subject to surveillance. In fact, Larry knows of one case in which an employee was fired after an undercover investigation by an outside firm turned up evidence of misconduct. Although the employee may have stolen from the company, Evan could have simply contacted the authorities when he first suspected something amiss.

Larry wants to take action, but is uncertain how to proceed.

Which act would authorize Evan’s undercover investigation?

Show Answer
Correct Answer: BC

The Stored Communications Act (SCA) addresses the rights of employers to access and monitor electronic communications and stored data. It sets out provisions regarding the interception and access to electronic communications and stored electronic records, which is relevant in the context of monitoring emails, phone calls, and browsing histories. This act permits employers to conduct surveillance and investigations as long as certain conditions, such as notification and consent, are met. The investigation into misconduct aligns with these aspects of the SCA.

Discussion

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impchoiOption: B
Dec 24, 2022

Stored communications. As previously discussed, the SCA creates a general prohibition against the unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided.119 Violations for interceptions can lead to criminal penalties or a civil lawsuit. The law provides for exceptions. Two exceptions that may apply to the employer are for conduct authorized: “By the person or entity providing a wire or electronic communications service” (often the employer)120 “By a user of that service with respect to a communication of or intended for that user”121

Shaza123Option: D
Mar 20, 2023

The correct answer is D - FACTA.

Shaza123Option: D
Mar 20, 2023

The correct answer is D .

smp175Option: B
Jul 5, 2023

Answer is B for reasons impchoi stated. Not sure if the comments pointing to D without support are trolling or not... Nothing implicates FACTA...

AmbulocetusOption: D
Aug 19, 2023

FACTA doesn't apply. The FCRA does not apply to investigations conducted by the in-house personnel. In addition, FCRA does not apply when a third-party, who is not in the business of providing such reports, does the investigation .

RomeoktonOption: D
Feb 2, 2024

The investigation is not described to be related to communication. It is a suspected theft. The official book says: Under FACTA, employers are not required to notify an employee that an outside organization is conducting an investigation. So, for me here is D and impchoi is wrong.

Priv24Option: D
Apr 2, 2024

Look at the book 12.2.2.5. The answer is D.

BhimeshOption: B
Apr 11, 2024

Email and Telephone Monitoring As with video and photographic monitoring, companies have similar reasons to monitor employee communications by phone and email. The ECPA's business purpose exception applies here as well, but that exception applies only to work‐related communications. This means that employers have to stop surveillance if a conversation seems to be personal. Some employers deal with this through policies banning personal communications using company phones or email. The “SCA” plays a role here as well. Emails stored on a server are not considered communications by the ECPA and thus not subject to the Wiretap Act. As long as companies notify employees that they do not have an expectation of privacy for information stored on company servers, the “SCA” permits employers to review information it stores. The ECPA and the related “Stored Communications Act (SCA)” permit the monitoring as long as certain requirements are met

Bhimesh
Apr 11, 2024

Under federal law, “interception is permitted” if a person is the party to the call or if one of the parties has given consent. A number of states, however, have the stricter rule that all of the parties to the call must consent. This all-party consent requirement is why customers often hear a message giving notice that a call is being recorded for quality assurance or other purposes A second exception relevant to many companies concerns interception done in the “ordinary course of business”. This exception can apply where the device used for the interception is “furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business.” To qualify for the exception, the interception itself must also be in the normal “course of the user’s business”. Normal course of business here would apply to routine monitoring in a call centre.

Bhimesh
Apr 11, 2024

By contrast, the employer listening to an employee’s purely personal call would risk running afoul of the wiretap laws. Courts have split on how broadly to define “ordinary course of business,” which is a reason that many employers rely instead on the “consent exception” for interception of telephone calls. Note that the federal law is not pre-emptive, so if an organization is monitoring or recording calls, it runs the risk of violating the stricter law in the “all-party consent” states mentioned above- it should not rely on any of these exceptions outside the specific state.