The movement toward rationalization and control of the workplace through surveillance is part of a larger trajectory in modern institutions, progressing toward more subtle, nonphysical means of effecting social control. But this movement is only fully realized in the absence of preventative legislation and when technology provides a fundamentally transparent and nonphysical means to acquire information on employees. It is the transparent forms of surveillance which pose the greatest challenge to employee privacy. Ironically, the nonphysical threats of technology have provided the greatest difficulty for lawmakers to address in protecting the right to privacy.

The concept of privacy has long been implicit in the Supreme Court's protection of Fourth Amendment rights, but this protection has not always been sensitive to the challenges posed by technology. In Boyd v. United States,  the Court invoked privacy rights in connection with property. The 1886 case centered on the government's attempt to subpoena a person's private papers for use in a civil forfeiture proceeding, and the Court ruled that the subpoena violated the Fourth and Fifth Amendments based on the individual's "indefeasible right of personal security, personal liberty and private property."  Solove notes that Boyd "follows a conception of privacy that the Court consistently adhered to in the late nineteenth century and the first half of the twentieth century. Under this conception, the Court viewed invasions of privacy as a type of physical incursion."  The Court of that time also protected the individual from physical, bodily intrusions without explicit reference to the search and seizure provisions of the Fourth Amendment by adopting the language of physical trespass and property rights to articulate a right to privacy. In Union Pacific Railroad Company v. Botsford, the Court ruled that a female employee of the railroad could not be compelled to submit to a medical examination. "To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass."  The Court had at this point firmly rooted privacy expectations in the physical realm. In 1890 Warren and Brandeis authored their famous article "The Right to Privacy," and argued that privacy was more than just protection from physical intrusion; just as the right to life is more than just protection of one's physical body from battery, so too the right to privacy must be understood as more than just protection from physical trespass.

The Court's connection between privacy and Fourth Amendment protection against physical intrusion was in the forefront in the 1928 case Olmstead v. United States. The Court ruled that wiretapping a person's phone outside their home did not amount to an invasion of privacy because there was no physical trespass. "The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants."  Justice Brandeis dissented, arguing that "time works changes. . . . Subtler and more far-reaching means of invading privacy have become available to the government."  Technological developments had created new, intangible threats to privacy that current legal language and assumptions were unable to address.

Moreover, "in the application of a constitution, our contemplation cannot be only of what has, been but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

Nonetheless, the opinion in Olmstead dominated the Court's understanding of privacy for the next 40 years, until the idea of physical intrusion was finally abandoned in the 1967 decision Katz v. United States. The paradigm eventually adopted was not a definition to manage the challenges of technology in nonphysical spheres, but one which centered on an individual's expectation of privacy - a subjective standard which, we will see in the next chapter, is easily diminished by warning an individual in advance that they are being watched. What has been lacking is a positive understanding of privacy that is able to safeguard individual rights against each new technological incursion, be it physical or intangible. To develop such an understanding would require that the courts first understand the nature of technology and how it obviates physical space, or perhaps more accurately, reduces physical space to a condition we can call virtual.