Traditional concerns for employers have included: harassing or other discriminatory actions; other conduct leading to liability to third-parties; forbidden fraternizing; criminal activity; “frolic and detour” or other slacking; and protection of trade secrets. Over the past fifteen years, workplaces have become increasingly digitized, as a ramification of electronic information’s predominance in all aspects of modern life. In the era of data proliferation, employers have a heightened legitimate interest in protecting themselves.
Given the mobility of electronic information, the stakes keep getting higher. Employees have access to, and are the gatekeepers of, trade secrets and other sensitive and confidential information. There are now many more ways that key information can be compromised, lost or stolen. The author typically parses the risks into three key categories, namely: 1) unintentional disclosures via loss, theft or hacking; 2) inadvertently harmful intentional disclosures; and 3) intentionally harmful intentional disclosures such as those on Wikileaks.