Click the link above to submit assignment Assignment #1 – Electronic Surveillanc
ID: 1229453 • Letter: C
Question
Click the link above to submit assignmentAssignment #1 – Electronic Surveillance of Employees
View the video: “Electronic Surveillance of Employees” by clicking on the link in the course shell. There is also a link that will allow you to print the script of the video. Write a four to five (4-5) page report that answers the following:
1.Explain where an employee can reasonably expect to have privacy in the workplace.
2.In the office workplace there are typically two types of workspaces, an open area, in which there are several desks and where conversations can be overhead, or an enclosed office, in which—when the door is closed—conversations cannot be heard and where one would expect virtually total privacy. Explain whether it makes a difference if an employee is in an open area or in an enclosed office.
3.Explain if Herman’s need to know whether his salespersons are honest is a sufficient ground for utilizing electronic surveillance.
4.Explain to what extent an employer can engage in electronic surveillance of employees.
5.Explain to what extent the inclusion of innocent, unaware third-parties in such surveillance determine whether it is legal.
Explanation / Answer
ELECTRONIC MONITORING IN THE WORKPLACE I. INTRODUCTION In the United States it is estimated that around twenty million workers are electronically monitored on the job. This monitoring runs the gamut from keystroke counting; telephone service observation whereby statistics are gathered on the duration, time between, and number of calls; telephone call accounting; "peeking" on to workers computer screens and into electronic mail; and the use of "active" or "magic" badges that can keep track of an employee's movements and locations. Increasingly, computers are being used to set tasks and performances for all levels of worker. While there are limits on the use of surveillance techniques by government agencies such as the FBI, the private employer is free from meaningful constraints: "They may view employees on closed-circuit TV; tap their phones, E-mail, and network communications; and rummage through their computer files with or without employee knowledge or consent--24 hours a day." (Piller 1993:6) The parameters of debate on this issue have been primarily defined by business interests. Proponents of the electronic monitoring of workers regard it as an efficient means to manage a modern enterprise, ensuring quality customer service, and increasing productivity. While it is recognized that abuses may occur, these can be avoided by a participatory introduction of the new technology allowing the workers some input into the design and implementation of the monitoring systems. Furthermore, regular feedback with the "objective" results to employees enables them to improve performance. In opposition, the arguments against electronic monitoring point to real and systematic abuses - the creation of "electronic sweatshops." Employees face increased stress through constant surveillance - real or perceived. Results gathered from monitoring are used to determine pay and promotion. However, these opponents have still accepted the need for electronic monitoring, but seek to curb its excesses and ensure a more equitable balance of power between employer and employee. This approach is apparent in the current legislative attempts to address the issue; the Privacy for Consumers and Workers Act (HR 1900 and S 984). A more radical approach to the issue of monitoring and surveillance in the workplace can be derived from the work of Jeremy Bentham and Michel Foucault. Utilizing Bentham's idea for a prison architecture called the Panopticon, Foucault shows that architecture which allows for constant surveillance - or at least the perception of constant surveillance - "coerces by means of observation." The worker, prisoner, soldier or student is not only transformed by observation but internalizes the values of the overseeing organization and becomes an element in their own repression. Using Panoptic power as a theoretical model, electronic monitoring becomes the means by which employers can inexpensively assert their control in the workplace, and still allow a measure of participation and employee input. Increased productivity and improved customer service may be the professed goals of employers but the sub-text is an attempt to reassert their traditional prerogatives in the workplace. Therefore attempts to curb employer excess fails to address the real issue of power between labor and capital. Organization Section II traces the current parameters of electronic monitoring in the workplace - types of monitoring and monitored workers; the rationale by business for its implementation; objections to monitoring; an outline of the current legal situation regarding monitoring and legislative attempts to protect workers from surveillance. Section III introduces Bentham's concept of the Panopticon and discusses Foucault's adoption and adaption of the idea. Section IV uses the developed theoretical model to analyses monitoring in the new technological workplace. II. CURRENT PARAMETERS OF ELECTRONIC MONITORING Extent of Monitoring In a report from the Office of Technology Assessment electronic monitoring is defined as: "the computerized collection, storage, analysis, and reporting of information about employees' productive activities." (OTA 1987:27) American business has always monitored and surveilled its workers. Before 1913 there were mechanical keystroke counters ("cyclometers") for typewriters, and assorted methods for measuring typing output. Telephone operators have had their calls listened to, and their speed measured, since the 1920s (Attewell 1987). However, what makes the present situation unique, is the sheer scale of the monitoring; the extent to which the overseer is unobtrusive and the capabilities of modern technology for the "storage, analysis and reporting" of the gathered information. The precise number of workers who are monitored on their jobs is difficult to discern. In 1987, the OTA suggested that six million office workers were evaluated using computer generated statistics (OTA 1987:1). By 1993, some analysts had twenty-six million employees having their work tracked electronically, and ten million of these have work evaluated, and pay based, on statistics collected through monitoring (DeTienne 1993:33; Nussbaum 1992:21). A more localized and informal study in the New York metropolitan area found that 40% of companies used some form of electronic monitoring (Bylinsky 1991). Types of Monitoring There is a wide-range of possible monitoring devices and techniques open to the modern employer. Computer-based monitoring automatically records statistics about the work of the employee who is using a computer. This is particularly prevalent with data entry operators, as it allows the employer to count the gross number of keystrokes, the number of minutes on the machine, gross keystrokes per hour, stroke rate for each job, the number of jobs, and the number of corrections of errors (Danaan 1990:18). An important element of the whole process of data collection is that figures can then be used to compare and evaluate employees. This type of monitoring of employee performance is often used in unison with telephone service observation. While a supervisor may be listening into the actual telephone conversation, the computer captures information about the length of the call, time between calls, and the number of calls taken in a specific time period. Apart from its use in evaluating employees such systems enable the employer to implement a distribution system, automatically routing calls to free operators. An additional telephone-based form of monitoring is telephone call accounting systems that automatically calculate the time, duration and destination of a call. In occupations such as flight reservation/sales agents all these forms of monitoring can be used in order to calculate a performance evaluation. In one example, an agent for an airline company is meant to handle 275 incoming calls a day, with a 90% booking ratio. Bad productivity, perhaps resulting in disciplinary action, is deemed to be calls below this daily quota, calls greater than 215 seconds, more than twelve minutes away from the computer to use the bathroom or too much time between calls (Danaan 1990:23). Increasingly, freight haulers use computers to monitor speed, fuel consumption, engine idle time and length of stops (Piller 1993). The dual purpose of technology becomes apparent in this example - it is used for safety, or adherence to predetermined management performance goals. Another trend is the monitoring of desktop computers. An ad for CloseUp networking software exclaims: "look in on Sue's computer screen . . . In fact, Sue doesn't even know you're there! Hot key again and off you go on your rounds of the company. Viewing one screen after another, helping some, watching others. All from the comfort of your chair." (Bylinsky 1991) Networking Dynamics Corporation of Glendale makes Peek and Spy - "Peek" requires employee approval whereas "Spy" does not. American Airlines installed remote-screen surveillance software to supplement its listening operations at Dallas-Fort Worth. This additional capability allows supervisors to monitor data entry as well as the actual telephone conversation (Bylinsky 1991). It would seem that as LANs proliferate in the workplace the potential for this type of monitoring will be greatly enhanced. The final types of monitoring are those that can determine an employee's actual location using a badge worn by the employee, or through video surveillance. Work at Olivetti has produced a multimedia system called Pandora. It consists of a group of networked workstations that provide for real-time and recorded digital audiovisual information. It is described thus: " The simplest use of Pandora is just observation. The staff at Olivetti Research can view remote offices through video cameras mounted over each Pandora station. Although it's perfectly permissible to peek at the scene surveyed by another Pandora station, a user can't listen to that station until somebody at that end lets him -- i.e., accepts the call. " (Hopper 1992:99) The "Active Badge" monitors the movement of people in a building. The badge contains an infrared transmitter that every fifteen seconds transmits a 48-bit word, which is the wearer's unique ID. The potential for abuse is obvious. Information about the badge wearer is held in a central database and includes security clearance, preferred computer applications, right or left handedness and "even how the user takes his coffee." (Hopper 1992:99). The future holds the prospect of yet more sophisticated forms of monitoring. The lowering of costs and the increase in technical refinement will act as an incentive for business to introduce and upgrade its surveillance techniques. Computer surveillance program sales were at $175m in 1991 and expected to grow at 50% per year until 1996 (Bylinsky 1991). Taken in concert with the declining rates of unionization, and the consequent effect on the power of organized labor, the potential barriers to more monitoring appear weak. Types of Occupations At present the bulk of electronic performance monitoring (EPM) takes place among clerical workers in financial services, insurance, telecommunications, federal and state government and occupations that require extensive customer service using the telephone - i.e., airline reservation clerks, and telephone company operators. The types of jobs that are more suited to electronic monitoring are those that are short-cycle "production" jobs, where a "limited number of standardized tasks are performed repeatedly to produce some information-based end-product." (OTA 1987:28) The characteristics of these occupations are that the work is of a routinized nature, divided into discrete and measurable units; workers generally require little training and consequently there is little difference between experienced and unexperienced workers; there is generally an ample labor supply and finally, data collection is straightforward. However, as the means of monitoring becomes more sophisticated the scope of its reach widens. Increasingly, it is being applied to professional jobs with a more quantifiable output. This ranges from computer programmers to stockbrokers and loan officers. For example at Charles Schwab brokerage, the stockbrokers are listened to via computerized voice-recording systems (Bylinsky 1991). While this is used to comply with securities regulations, the company also uses computer-generated performance statistics as a management tool to increase productivity through inter-broker competition. Implementation A particularly controversial element to electronic monitoring is the means of implementation. When employers unilaterally introduce electronic monitoring, with little or no participation by the workforce, there is resentment, increased levels of stress and perhaps not even any increases in productivity. Some suggest that these effects can be avoided or reduced if the employer involves the employee in the design and implementation of the monitoring system (OTA 1987; Westin 1992). Then once in place attitudes toward the system depend on "fairness" - the performance standards, the electronic monitoring itself and the use of the gathered statistics. In the latter case the collected data can be used for training and feedback, to determine pay and promotion and for disciplinary measures. However, the debate on the issue of implementation fails to consider the reality of power relations in the workplace. Often the demands for worker participation extend no further than creating a working consensus around the issue of monitoring. Questions of control of the workplace and whether electronic monitoring should even be introduced are never open for debate. This confines the issue to what is the most effective means of implementation from the perspective of the employer, rather than fundamental questions of worker control. Business Rationale It is instructive to analyze the rationale used by business interests for the implementation of new technological means to monitor the workforce. The general rationale, as expressed by the CBEMA (the Computer Business and Equipment Manufacturers' Association) is that, "the measurement of work by computer is a legitimate management tool that should be used wisely. Used appropriately, monitoring and related techniques, such as incentive pay or promotion based on productivity, can increase both an organizations effectiveness and the employee's ability to advance." (Lund 1992:54) More specifically, monitoring helps to ensure that the customer receives quality service - the Telemarketing Association describes its monitoring as "quality of service telemarketing monitoring" (Direct Marketing 1993:6). The use of monitoring allows the employer to protect employee safety - i.e., video surveillance in parking lots - while computer monitoring can aid in the fight against employee fraud and dishonesty. In an interesting justification for monitoring Ehrlich (1993) states, "the increasing reliance on new technologies in the American workplace has led to a real need for employers to monitor their employee's use of these technologies." (ibid:5) The same author sums up the new nirvana of the electronic workplace: "through the use of electronic technology, American companies are able to guarantee their customers receive a quality good or service in a timely manner. They are also better able to enhance employee safety, protect employer and employee property, improve accounting efficiency, provide perquisites and benefits to employees, enhance employee convenience and prevent fraud." (Ehrlich 1993:1) In fact, electronic monitoring becomes an essential part of America's drive to remain competitive in the global economy. In his opposition to the Privacy for Consumers and Workers Act, Lawrence Fineran of the National Association of Manufacturers (NAM) regarded the legislation as interfering "with the ability of modern and future equipment that can assist domestic companies in their fight to remain competitive ... otherwise the United States may as well let the information age pass it by." (Piller 1993:7) The protection for the worker in these scenarios comes from the workings of the free market system. Unless employers are more sensitive to the needs of the monitored workers there will a mushrooming of workers compensation claims and medical costs because of stress-related illnesses. In addition labor turnover and absenteeism will increase as workers move into other occupation (DeTienne 1993:37). This view of the self-regulating free market for labor seems particularly unrealistic in fragile economic times. Objections to Monitoring The official AFL-CIO objection to monitoring is that: "Electronic surveillance invades workers' privacy, erodes their sense of dignity and frustrates their efforts to do high-quality work by a single- minded emphasis on speed and other purely quantitative measurements." (Lund 1992:54) Objections to computer monitoring are threefold. First, on the issue of privacy, monitoring is seen as intrusive and does not allow for individual differences in work style. Secondly, there is the question of fairness. How is it implemented? Are there reasonable standards, and the opportunity to contest records? What is the level of worker participation in design and implementation? Is the information gathered substantive or transactional? In other words is the information collected analyzed for its content or merely for quantitative reasons. Finally there are quality of work life concerns. What is the incidence of stress, or stress-related illness? (OTA 1987:8). Electronic monitoring produces pressure to perform. The range of stressful working conditions related to monitoring include: heavy workload; repetitive tasks; social isolation; and fear of job loss. These are exacerbated by the lack of job involvement or participation, and lack of organizational support. The OTA report describes the situation thus: "when jobs are redesigned to facilitate computerized monitoring of work performance, they are also reshaped in ways that increase the degree to which management directs both the place and the method of work. This lack of personal control, in turn, places workers at significantly greater risk of ill health." (OTA 1987:54-55) Therefore there are "sociotechnical" triggers that can create direct psychological effects, besides generally adverse working conditions (Smith et al 1992:18). The introduction of rationalized and standardized production methods can contribute to stress because of its continual and incessant nature. Work variety, intellectual challenges and growth potential are seriously diminished when "responsibility for making decisions about performance is embedded in the information system." (Amick and Smith 1992:11) In a study of worker stress for the Communication Workers of America (Smith 1992), the results indicated that, "the monitored employees reported higher workload, less workload variation and greater workload dissatisfaction than the unmonitored employees. The monitored employees also reported less control over their jobs ... less fairness of their work standards and more frequent interactions with difficult customers." (Smith et al. 1992:21) Monitored workers reported more somatic health complaints: musculoskeletal, psychological, and psychosomatic problems (See Table 1). However, what is also instructive about these results are the unacceptably high levels of health complaints for even unmonitored service representatives Electronic surveillance in the workplace Electronic Surveillance in the Workplace: An Overview Today almost all jobs have the potential to be subjected to some type of electronic surveillance. Some jobs more than others are particularly susceptible to monitoring practices. Above n 4, at 6. These can range from the office worker whose supervisor reads his or her e-mail messages to the grocery store cashier whose bar code scanner records the speed at which he or she is working. Ibid. For the employees of call centres in particular, monitoring has become an essential feature of the workplace. While in earlier times surveillance was primarily limited to the information that a supervisor could observe and record firsthand, in the computer age, surveillance can be all-encompassing, constant and instantaneous. Workplace surveillance can take many forms. Of those 78% of American firms that admitted to conducting surveillance on their employees in the recent AMA study, almost half said they monitored employee phone calls, either by recording the information about calls made (43.3%), or by actually listening to the calls themselves (11.9%); 7.8% stored and reviewed voice mail messages and 46.5% stored and reviewed electronic mail of employees. Above n 2. A large percent monitored employees’ computers, either by recording computer use (time logged on, key strokes, time between entries etc – 18.9%), by storing and reviewing employees’ computer files (36.1%), or by monitoring Internet connections (62.8%); 15.2% admitted to video taping employee job performance and 37.7% to videotaping for security purposes. Ibid. As a result of these findings, Eric Rolphe Greenberg, director of management studies at the AMA, described workplace privacy as an oxymoron. Auchard E, "Big Brother really is watching you", The Vancouver Sun, 2 June 2001, p 2 at 2. There have been several reasons suggested for the predominance of surveillance. One suggestion is the simple fact that the technological possibility exists. As Vorvoreanu and Botan note, “[f]or the first time such surveillance is possible because new technology makes it easy to use and relatively inexpensive to install so that those with the desire to surveil can indulge it more easily than ever before.” Above n 4, at 8. There are, of course, other reasons for instituting surveillance. According to the AMA study, the top four reasons for using surveillance in the workplace were performance evaluation, compliance with federal and local laws, protection against legal liability and cost-control of the use of company phone and internet. Above n 2. Other commonly cited justifications included protection of business information, security and safety. Above n 4, at 8. Given the inadequacies of existing legal regulation, these justifications have prompted the widespread adoption of surveillance and monitoring technologies in various industries. The emergence and development of workplace surveillance practices have become a challenge for our traditional understanding and conceptualisation of the relationship between law and technology. In the process of making a case for law reform, it has been commonly assumed that the absence of legislation constitutes a legal vacuum. For instance, the NSW Privacy Committee commented in 1995 that “[v]ideo surveillance in the workplace in Australia currently is unregulated” Privacy Committee of New South Wales, Invisible Eyes: Report on Video Surveillance in the Workplace (Sydney: 1995) at 4. and that “[t]he rapid growth of workplace video surveillance is occurring in a regulatory vacuum.” Id, at 53. However, as Sempill points out, this view obscures the role played by the contract of employment in creating a scheme of legal regulation. Sempill J, “Under the Lens: Electronic Workplace Surveillance” (2001) 14 Australian Journal of Labour Law 111 at 114. The traditional norms of employment law not only permit electronic workplace surveillance but actually assume the legitimacy of such forms of employer conduct. Ibid. Thus, in the process of omitting the relevance of the employment contract, the practice of electronic surveillance is frequently condemned without calling into question those legal and political relations upon which it is based. Similarly, the notion that the law must catch up with technology is also problematic. For example, one writer has commented that “the pace of technological development has … outstripped the pace of legal developments” and that “it is time” for the law “to catch up.” Boehmer R, “Artificial Monitoring and Surveillance of Employees: The Fine Line Dividing the Prudently Managed Enterprise From the Modern Sweatshop” (1992) 41 De Paul Law Review 739 at 741. This perspective is essentially a form of technological determinism. In this instance, the language assumes an interpretative bias suggesting that technology has a life of its own. Above n 19, at 114. However, technology is “not some kind of self-perpetuating, independent force, but … it is developed and deployed in a manner which serves and buttresses certain power relations and is, in turn, suffused with those power relations.” Above n 19, at 113. The idea that technology has “outstripped” the law removes from view the “flesh and blood decision-makers” who have chosen to utilise electronic surveillance techniques in order to survey, discipline and control employees. Above n 19, at 115. Thus, as Sempill argues, “[t]echnological-determinism obscures the fact that electronic workplace surveillance is simply a new, albeit particularly offensive, method of enforcing the employer’s legal rights to secure obedience, to protect property, to ensure fidelity, and so on”. Ibid. In recent years, the growth of workplace surveillance practices has become an issue of public concern in the popular press. Journalists have tended to refer to George Orwell’s Big Brother, portraying the new workplace as an environment that falls just short of the dystopia depicted in Nineteen Eighty-Four. Orwell G, Nineteen Eighty-Four (London, England: Penguin Books, 1989). The topic has been sensationalised with article titles such as “Big Brother at Work” Lawton V, “Big Brother at Work”, Toronto Star, 10 November 1997, p C1., “Bigger Brother” Nicholls S, “Bigger Brother”, The Weekend Australian, 7 August 1999, p 46., “Why your boss is bugging you” Long S, “Why your boss is bugging you”, Australian Financial Review, 27 June 1998, p 26. and “The Boss Never Blinks" Koepp S, "The Boss Never Blinks", Time, 28 July 1986, p 46.. Whilst such articles adopt an inflammatory approach, the writers do give voice to concerns over electronic surveillance, suggesting an overall dissatisfaction with the lack of privacy rights in the workplace. Above n 4, at 9. Furthermore, the consistent language choice reflects a negative attitude towards electronic surveillance in particular. Words associated with the topic include ‘snooping’, ‘snoopers’, ‘sneaking’, ‘spying’, ‘e-spying’ and ‘prying’. The other view of workplace surveillance is that employers have a legitimate right to conduct surveillance for the benefit of themselves and/or the community at large, for purposes such as the detection of fraud and other crimes, the deterrence of criminality, and in order to comply with laws such as discrimination and defamation law. In addition to electronic monitoring directly linked to performance assessment, employers may therefore also engage in surveillance practices involving the scanning of employee email and internet use, often for the purpose of meeting obligations to prevent employees from using these technologies to harass colleagues or access prohibited websites. Yet the opportunity for abuse of the power wielded by surveillance is clear. Surveillance therefore presents us with a constant ethical dilemma: it "is useful but harmful; welcome but offensive; a necessary evil but an evil necessity." Sewell G & J R Barker, "Neither good, nor bad, but dangerous: Surveillance as an ethical paradox" (2001) 3 Ethics and Information Technology 183 at 183. Sewell and Barker advocate for the need to get beyond those simplistic categories of "good" and "evil", and instead debate the "micro-practices" and "micro-politics". Id, at 192. Given our complex and often contingent relationship with surveillance, they argue that "surveillance is neither good nor bad but rather dangerous." Id, at 191. The particular danger of surveillance lies in its ability to become embedded and therefore hidden; unscrutinised and therefore unaccountable. Surveillance systems operate by abstracting human bodies from their territorial settings and resembling this information into distinct "data doubles" which can be scrutinised and targeted for intervention. Haggerty K D & R V Ericson, "The Surveillant Assemblage" (2000) 51(4) British Journal of Sociology 605 at 605. Although this process appears to be objective and scientific, it is neither amoral nor value neutral. The conduct of surveillance, although delivered by machines at some remove from human direction, is nonetheless a human act, involving subjective human decisions based on values, interests and unequal relations of power. Understanding that surveillance is not value-neutral is therefore the first step in developing appropriate accountability frameworks. In the following section, this paper will examine the arguments from both privacy discourse and other academic disciplines, with respect to the impact of electronic performance monitoring on employees and the workplace. Part 3 of this paper then reviews some case studies of electronic performance monitoring in the workplace. II. Employee Privacy and Electronic Performance Monitoring Privacy NSW, like other privacy organisations in Australia and overseas, has raised concerns regarding electronic performance monitoring and called for critical scrutiny and evaluation of the impact of surveillance technologies on employees’ health and safety. Privacy has been variously described as the "right to be left alone", the right to personal space or autonomy, the right of people to exercise control over their personal information or, more recently, fair information practices. Privacy advocacy seeks to protect the dignity and autonomy of individuals, in this case, employees. Following the publication of three reports on workers’ privacy, International Labour Organisation, Conditions of Work Digest, (1991) 10(2) Workers’ Privacy Part I: Protections of personal data, (1993) 12(1) Workers Privacy Part II: Monitoring and surveillance in the workplace and (1993) 12(2) Workers’ Privacy Part III: Testing in the Workplace. the International Labour Organisation (ILO) developed a voluntary code on the protection of workers’ personal data. Protection of Workers’ Personal Data, an ILO Code of Practice (Geneva, 1997). The ILO code is regarded as the standard among privacy advocates around the world for protection of worker’s privacy rights. At a national level, Hong Kong and the UK have recently seen fit to introduce codes of practice dealing specifically with workplace privacy issues. Code of Practice on Human Resources Management 2001 (HK) and the Employment Practice Data Protection Code (Part 1-4) 2002 (UK). In NSW we have the Workplace Video Surveillance Act (NSW), which was introduced in 1998 after a turbulent history, which we will discuss further in Part 3 of this paper. Notwithstanding the widespread influence of liberal privacy discourse, some writers have sought to question the extent to which privacy is still a relevant and useful concept. As new information and communication technologies intrude inexorably into our lives, the liberal conception of the separation between the public and the private is perceived by some to be meaningless. A number of writers have predicted the ‘death of privacy’ or the ‘end of privacy’. Rosenberg J M, The Death of Privacy, (New York: Random House, 1969), Whitaker R, The End of Privacy ? How Total Surveillance is Becoming a Reality. (New York: New Press, 1999), Brin D, The Transparent Society: Will Technology Force Us to Choose between Privacy and Freedom ? (Reading MA: Addison-Weasley, 1998). Others yet have simply demanded that we give up our desire for privacy. In 1999, the Chief Executive of Sun Microsystems made the infamous comment, "You already have zero privacy. Get over it." Scott McNally, quoted in Markoff J, "Growing Compatibility Issues: Computers and User Privacy", The New York Times, 3 March 1999, p A1. These perspectives run the risk of sounding unduly fatalistic and uncritically accepting of the technological imperative. This imperative implies that the invention of each new technology demands its development and application. See Pacey A, The Culture of Technology (Oxford, England: B Blackwell, 1983). However, there are numerous examples of technologies which though technically possible are not always developed or when developed, are rejected. Dr Daniel Chandler, University of Wales, cites the lack of commitment to developing alternative energy sources: http://www.abcer.ac.uk. In addition, this pessimistic perspective invokes an understanding of the public/private distinction which is one-dimensional and fixed. However, in the workplace, the categories of ‘public’ and ‘private’ are defused and ambiguous. As Marx explains, "[t]hose making sweeping claims about either the death of privacy, or the public (and therefore presumably non-problematic) nature of the technology’s emission and receptions use the former terms as if their meaning was self-evident. It is not. The public and the private involve multiple meanings over time and across cultures, contexts, kinds of persons and social categories". Marx G, "Murky conceptual waters: The public and the private" (2001) 3 Ethics and Information Technology 157 at 160. Marx suggests that our normative understanding will improve with greater clarity in the meanings attributed to the terms public and private. Ibid. Moreover, we should not become complacent about our ability to arrest the shrinkage of the private domain. On the contrary, we should be constantly vigilant against the intrusion of information and communication technologies into our lives. As Sewell and Barker argues, "[t]echnological rationalisation is not inevitable and liberal sentiments concerning the importance of privacy are deeply ingrained and, therefore, likely to be resilient even in the face of significant challenges." Above n 33, at 186. The protection of privacy therefore remains relevant and integral to the dignity and autonomy of individuals, at least within those states with a liberal philosophical tradition. In recent times, one of the major threats to workers’ privacy has been the development of electronic performance monitoring. "Performance monitoring" is the "random or continuous surveillance of employees for the purpose of monitoring individual work performance." NSW Law Reform Commission, Surveillance: An Interim Report No 98 (Sydney, NSW: 2001) at 115. The main reasons for undertaking this form of surveillance is to improve productivity, to ensure work quality and to aid performance evaluation. Ibid. ‘Engineered standards’ is an example of a performance monitoring system used in the grocery warehousing industry. This computerised system enables management to measure employee output, set standard times for each job assignment, and monitor and enforce employee compliance with such standards. Wright C & J Lund, "Best-Practice Taylorism: ‘Yankee Speed-Up’ in Australian Grocery Distribution" (1996) 38(2) Journal of Industrial Relations 196 at 201. Another example is the ‘Investigator’ brand of performance monitoring software, which logs all employee Internet and e-mail use and has the ability to record every keystroke made, every program used, and every file opened or copied. Above n 47, at 116. The collected information can be automatically e-mailed to a supervisor or employer in a searchable report. Ibid. Despite the touted benefits of electronic surveillance for employers, performance monitoring is also one of the most controversial uses of surveillance technologies. Privacy advocates tend to hold a view, based primarily on assumption and intuition, that surveillance is counter-productive and harmful to employees. The challenge for privacy advocates is to unravel the role of surveillance within a context of a complex set of rights, interests and power relations. It is in dealing with this challenge that privacy advocates must look beyond their traditional liberal and human rights-based discourse and engage with disciplines as diverse as organisational psychology, industrial relations and management theory. By reviewing some case studies of workplace surveillance and literature from other fields, we argue that the various disciplines have much to learn from each other. Research from the field of occupational health and safety in particular indicates that there is a link between the introduction of performance monitoring and an increase in workers’ safety and health problems. For example, studies on the engineered standard systems undertaken by the US National Institute for Occupational Safety and Health (NIOSH) reported that these systems increased the pace of work such that there was an increase in the risk of lower back and other injuries. National Institute for Occupational Safety and Health, Application Manual for the Revised NOISH Lifting Equation (NOISH Publication, 1994) at 96-110 as cited in C Wright & J Lund "‘Under the Clock’: trade union responses to computerised control in US and Australian grocery warehousing" (1997) 13(1) New Technology, Work and Employment 3 at 6. Further, the work was found to be physiologically demanding and at a level which many workers would not be capable of sustaining over long periods. National Institute for Occupational Safety and Health, Hazard Evaluation and Technical Assistance Report: Big Bear Grocery Warehouse Colance Report (Columbus, Ohio, 1993) and National Institute for Occupational Safety and Health, Hazard Evaluation and Technical Assistance Report: Kroger Grocery Warehouse (Nashville, Tennessee, 1995) as referred to in C Wright & J Lund "‘Under the Clock’: trade union responses to computerised control in US and Australian grocery warehousing" (1997) 13(1) New Technology, Work and Employment 3 at 6. Other health problems experienced by employees who have had their performance technologically monitored include stress, high tension, headaches, extreme anxiety, depression, anger, severe fatigue and musculoskeletal problems. Flanagan J, "Restricting Electronic Monitoring in the Private Workplace" (1994) 43 Duke Law Journal 1256 at 1263; International Labour Organisation, Workers Privacy Part II: Monitoring and surveillance in the workplace (1993) 12(2) Conditions of Work at 22. These health problems can in turn lead to increased absenteeism and employee turnover, Levy M, "The Electronic Monitoring of Workers: Privacy in the Age of the Electronic Sweatshop" (1995) 14(3) Legal Reference Services Quarterly 5 at 11. leading to a decrease in productivity. In addition to the link with safety and health concerns, research from the field of organisational psychology suggests that electronic performance monitoring has a general negative effect on the workplace. The knowledge that employees are being watched, listened to or otherwise monitored can create a negative workplace atmosphere undermining employee morale and creating division between employees and management. Above n 54, at 1264. Despite management views of electronic monitoring as a means to improve consistency in employee performance evaluation, employees frequently question the fairness of their employer’s use of electronic monitoring to review their performance. Ibid. A perceived lack of procedural fairness in monitoring can lead to undesirable negative employee reactions such as withdrawal, sabotage, resignation, or some other form of diminished organisational citizenship. Kidwell R E & N Bennett, "Employee Reactions to Electronic Control Systems, the Role of Procedural Fairness" (1994) 19(2) Group & Organizational Management 203 at 208. On the other hand, an electronic monitoring system is more likely to find acceptance with employees if the monitoring practices are regarded as relevant to their work and if the system is considered to be procedurally just. American research suggests that a process will be considered by employees to be procedurally fair only if it includes input from all affected parties, is applied consistently, suppresses bias, is as accurate as possible, provides a mechanism for correcting errors, and is developed within an ethical framework of accountability. Leventhal G S, "What Should be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships" in K Gergen, M Greenberg & R Willis (eds), Social Exchange: Advances in Theory and Research, (New York: Plenum, 1980) 27 at 30. In the next part of this paper we will use some case studies to examine how employees, employers and government have addressed the controversy and conflict arising from the introduction of electronic performance monitoring systems. III. Responses to Electronic Workplace Surveillance: Resistance and Regulation Whilst the workplace surveillance debate is generally viewed as a contest between civil liberties and technology, it should instead be framed as an episode in an on-going conflict between employers and employees. Above n 19, at 115. The adoption of workplace surveillance practices will depend on a range of complex political and historical factors including the prevailing level of industrial conflict, the extent to which employees can assert their privacy rights and the extent of government intervention in industrial disputes and through the enactment of legislation. This Part includes an examination of two case studies of industrial conflict which have had a critical impact on the development of the regulation of workplace surveillance practices. The first case study discusses an Australian dispute between a grocery chain store and unionised blue-collar workers. The second case study examines a recent American controversy involving electronic monitoring of the US judiciary. (i) Franklins v NUW: the NSW experience In New South Wales, the issue of electronic workplace surveillance was thrust onto the legislative agenda as a result of a series of bitter industrial conflicts. Most notable among these was the dispute between a grocery chain store, Franklins, and the NSW Branch of the National Union of Workers (NUW). See K Bissett & A Riddell, "21 Arrested in Franklins Sacking Riot", Daily Telegraph Mirror, 6 May 1994, p 1, 4.; R Hawes, "Supermarket Pickets Arrested", Australian, 6 May 1994, p 2.; E Tom, M Russell & S Sandham, "Police Warned of Death Grip on Protesters", Sydney Morning Herald, 6 May 1994, p 3.; M Davis, "Franklins Asks Workers for Undertaking Not to Stage Wildcat Strikes", Australian Financial Review, 10 May 1994, p 3. In May 1994, more than 800 workers went on strike over management proposals to introduce engineered standards. The NUW had argued that such systems were an attack on working conditions and were harmful to its members’ health and safety. Wright C & J Lund "‘Under the Clock’: trade union responses to computerised control in US and Australian grocery warehousing" (1997) 13(1) New Technology, Work and Employment 3 at 9. The strike lasted four days but it was no less acrimonious for being brief. Hostilities reached a crescendo as police and non-union workers attempted to break the strikers’ picket lines. Following this violence, the first phase of the dispute ended in compromise: the NUW accepted the engineered standards in exchange for a $35 pay rise. Russell M, "Franklins to Sack Strikers by Video", Sydney Morning Herald, 9 May 1994, p 1. Shortly after this compromise was reached, the issue of video surveillance sparked a further conflict between Franklins and the NUW. On this occasion, the company alleged that some of its property had been damaged by unionists during the earlier violence. Ibid. It claimed it had video evidence and the video footage was used to identify and sack one worker. This termination prompted a walkout by 900 workers. On the recommendation of the Industrial Relations Commission, Franklin’s employees returned to work and the employee in question was subsequently reinstated. Russell M, "Workers Back at Franklins", Sydney Morning Herald, 28 June 1994, p 5.; Franklins v NUW [1994] NSW IRComm 77 (Peterson J). As a result of this dispute, the Minister for Industrial Relations established an inquiry into engineered standards whilst the NSW Privacy Committee initiated an inquiry into workplace video surveillance. In its final report, the Industrial Relations Commission supported employers’ use of engineered standards subject to increased consultation with employees and union officials. Industrial Relations Commission of NSW, Engineered Standards, at 1-12, referred to in C Wright & J Lund "‘Under the Clock’: trade union responses to computerised control in US and Australian grocery warehousing" (1997) 13(1) New Technology, Work and Employment 3 at 9. In contrast, the NSW Privacy Committee in its publication, Invisible Eyes: Report on Video Surveillance in the Workplace, amongst other recommendations, called for the amendment of industrial relations legislation. Privacy Committee of New South Wales, Invisible Eyes: Report on Video Surveillance in the Workplace (Sydney, 1995) at 108-116. Following another two inquiries into video surveillance, The Working Party on Video Surveillance in the Workplace, Report to the Hon J W Shaw QC MLC Attorney General and Minister for Industrial Relations, (Sydney, 1996) and NSW Law Reform Commission, Surveillance: Issues Paper 12, (Sydney, 1997). the NSW Parliament enacted the Workplace Video Surveillance Act 1998 (NSW). The industrial dispute between Franklins and NUW was crucial in shaping both the terms of the debate proceeding the legislative enactment as well as the content of the legislation itself. Above n 19, at 134. In NSW, the Franklins dispute alerted the wider trade union movement to the increasing use of monitoring technologies in the workplace, and prompted some key unions, including the NUW, to become vigorous opponents of workplace surveillance. The dispute provided a vivid demonstration of the ways in which electronic surveillance could be used by employers as an instrument of class power. Ibid. In this instance, surveillance technology was used for the purposes of work intensification ("speed-ups") and disciplining deviant conduct ("strike-busting"). Ibid. As a result, workers were strident in their submissions to the various government inquiries, expressing strong objections to employers exercising state-like powers. Furthermore, given the inadequacy of the common law, the unions sought legislative intervention as their central demand. Ibid. This dispute may have impaired the public image of employer groups and undermined public confidence in their ability to use surveillance technologies responsibly. Employer groups mounted a campaign against the enactment of legislation to regulate electronic surveillance. In opposing parliamentary intervention, employers argued, amongst other things, that: (i) ‘self-regulation’ would afford employees sufficient protection; and (ii) electronic surveillance would be used primarily for crime control, rather than employee performance monitoring. Ibid. Nevertheless, as Sempill points out, the "Franklins dispute raised doubts about these claims and, therefore, weakened the ability of employers to make their case in the public arena." Ibid. Another critical outcome of the Franklins dispute is that the debate over electronic surveillance is defined in terms of an irreconcilable conflict between employer and employees. Ibid. The NSW Privacy Committee for example did not raise the possibility that a consensus could be reached between employers and employees. Instead the issue was approached on the basis that there were competing interests which could be traded-off but not reconciled. Both the Privacy Committee and the Law Reform Commission rejected the possibility of ‘self-regulation’ of covert surveillance. Above n 19, at 115. It was recognised that consensus of interest does not exist and that employers would use their superior power in the workplace to conduct covert surveillance in ways which offended vital employee interests. Above n 19, at 135. Thus, government intervention was seen as a necessity to protect those minimum standards of privacy which cannot be bargained away. In NSW therefore the use of video surveillance in the workplace has been regulated since 1998; covert video surveillance for the purpose of performance monitoring is now prohibited. However, there is no surveillance-specific legislation which deals with performance monitoring using overt video surveillance, or performance monitoring using other technologies. Employers must instead look to general privacy laws for guidance. NSW public sector employers must comply with the Information Protection Principles in the Privacy and Personal Information Protection Act 1998 which would suggest, for example, that surveillance must be reasonably necessary for a lawful purpose that is directly related to a function or activity of the agency, and it must not intrude to an unreasonable extent on the personal affairs of employees. See Privacy and Personal Information Protection Act 1998 (NSW) ss 8 & 11. However in terms of performance monitoring, private sector employers appear to be largely untouched by the new Commonwealth law which came into effect almost a year ago, as employee records are exempt from regulation. See Privacy Act 1988 (Cth) s 7B(3). The NSW Law Reform Commission however has more recently proposed more comprehensive legislation to regulate all forms of surveillance, both overt and covert, and regardless of the type of technology used. NSW Law Reform Commission, Surveillance: An Interim Report No 98 (Sydney, 2001), is available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r98toc. Privacy NSW’s submission in response is available at http://www.lawlink.nsw.gov.au/pc.nsf/pages/nswlrcresponse. This proposal is currently before the Attorney General for consideration. (ii) Recent US controversy: Monitoring the Federal Judiciary Last year, workplace surveillance became an issue of considerable public debate in the US when court administrators sought unrestricted monitoring of 30,000 federal court employees, including 1,800 judges. See J Groner, "Bench Brawl Erupts Over E-Monitoring", Court Watch, 10 September 2001, p 1.; J Biskupic, "Judges debate own privacy", USA Today, p 1A.; T Bridis & G R Simpson, "Judges’ Ire Stirs Debate on Web Monitoring", The Wall Street Journal, 9 August 2001, p B.9; N A Lewis, "Rebels in Black Robes Recoil At Surveillance of Computers", The New York Times, 8 August 2001, p A.1.; G Holland, "Judge panel agrees to Internet-monitoring policy for federal courts", Washington Dateline, 19 September 2001. In May 2001, a group of federal court judges learned that their internet communication was being monitored by court administrators. Electronic Privacy Information Center, Workplace Privacy, at http://www.epic.org/privacy/workplace/. The judges were troubled by the privacy and confidentiality issues arising. Some judges argued that the monitoring violated the Electronic Communications Privacy Act. Ibid. As a result, judges of the Ninth US Circuit Court of Appeal ordered technology staff to disable the internet monitoring systems on their networks. This shutdown lasted for a week and also affected the circuit network of the Eighth and Tenth Circuit. A public conflict ensued between the judges and the administrators who maintain judicial computers. The administrators wished to reinstate monitoring and adopt a policy giving federal judges and their staff no expectation of privacy in the workplace. However, the Federal Judges Association maintained that e-monitoring would threaten judicial independence. Unattributed, "Courts in the Act of Monitoring US Judges Shown Leniency in Web Use", Newswire, 21 September 2001. In September 2001, the Judicial Conference, the policy-making body of the federal judiciary, met to resolve the conflict. The Judicial Conference rejected the administration policy that would have eliminated all expectation of privacy "at any time" while online at work. Gordon P, "Federal Judge’s Victory Just the First Shot in the Battle Over Workplace Monitoring", Privacy Foundation, 20 September 2001, at http://www.privacyfoundation.org/workplace/. The Conference also voted to end e-mail monitoring of the judiciary. However, the Conference did approve limited monitoring of Internet use and prohibited the use of certain file sharing programs. Above n 82. Although this revised monitoring policy only applies to federal court employees, Chief Judge Charles H Haden II of the Federal District Court in Charleston, commented that it might be seen as a precedent. Unattributed, "Judges Ease Surveillance of Web Use", The New York Times, 20 September 2001, p 15A. He said, "I think anything the court system does over all may have an impact on the operation of private businesses." Ibid. Furthermore, commentators have queried the implications for judicial decision-making: "[w]ill the judges’ experience mean that courts will be more likely to guard the privacy rights of private employees?" Gips M, "Judging the impact on workplace monitoring", American Society for Industrial Security Management, 1 January 2001, p 12. The US Privacy Foundation has concluded that, "[t]he judicial retreat from unrestricted monitoring will have an impact on the 14 million US workers who, according to a recent Privacy Foundation study, are subjected to continuous monitoring while online. This rejection of unrestricted monitoring is particularly important given the calls for increased Internet security since the terrorist attacks. The adoption of a more limited policy by the judges proves the debate over workplace surveillance is far from over." Above n 85. Conclusion Those of us in the privacy field know that everything is about balance and proportionality: so how do we balance surveillance technologies with the protection of privacy? Let us be quite clear that life as a privacy advocate does not mean being a luddite. We do appreciate the benefits that many new technologies can bring. However with every new development in information technology, there is a correspondingly greater risk that the information that we might be happy to share with our family, friends or colleagues may also be shared with what American legal academic and journalist Jeffrey Rosen calls "a less understanding audience of strangers" Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America, (New York : Random House, 2000) see flycover. In particular there has been an unquestioning stampede to harness new technologies in the workplace, such as CCTV surveillance, relational databases and biometric identifiers, to deal with age-old problems of performance assessment, employee theft and so on. In many cases, the technologists have been driving both government and private sector policy decisions, within a vacuum of informed public debate. Developments in technology alone must not be allowed to drive our decisions. Our decision makers in government and the private sector alike - must pay more than just lip service to ensuring there is a proper balance being sought between the public interest in the protection of employees’ privacy and the accountability of employers’ dealings with personal information on the one hand, and the public interest in efficient government and business operations, law enforcement and public safety on the other. Along with the efficiencies brought by new technologies, therefore, comes the responsibility to deal with those technologies in an accountable manner. We need comprehensive and public policy debates about how organisations can best harness new technologies, rather than let technology harness us. Local privacy laws based on the core international privacy principles established by the OECD and the ILO are the obvious place to start. Privacy laws and principles are about ensuring organisations act fairly in the way in which they collect, store, use and disclose our personal information, as well as ensuring the accuracy of that information before it is used. As organisations gather more and more data about us, control over its use and misuse becomes increasingly important. As Jeffrey Rosen has noted, "Privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge". Id, at 8. The over-arching objective of privacy laws is to help each of us assert and preserve our dignity and autonomy, by allowing us, rather than governments, corporations, or anyone else, to control and define information about ourselves. In the context of the workplace, the protection of privacy is about shifting the locus of power away from employers, and back to employees. This can be a difficult message for privacy advocates to ‘sell’ employers. However employers need to understand that privacy protection is integral to trust, and trust is the cornerstone of effective employment relations. Whether you approach the issue from the liberal, privacy-as-a-human-right angle, an organisational psychology and management theory perspective, an occupational health and safety angle, or even the industrial relations field, it is clear that seeking the least privacy-invasive method of achieving an organisation’s goals makes sense. Privacy advocates need to be able to draw on those related fields in order to make convincing arguments in favour of greater regulation of surveillance in the workplace. This paper began by taking up the challenge of talking about privacy in the workplace. We suggest it is a challenge precisely because ‘the workplace’ is not an homogenous concept. It involves blurred and culturally-relative boundaries between the ‘public’ and the ‘private’ domain. The very nature of the employment relationship is inherently that of unequal power, and hence the workplace may be a site of conflict. Even within the one workplace, therefore, there may be co-existing radically different views on whether workers can or should have any expectations of privacy. In dealing with this challenge, we have argued that privacy advocates must look beyond their traditional liberal and human rights-based discourse and engage with disciplines as diverse as organisational psychology, industrial relations and management theory. However it should be noted that the conclusions to be drawn from those other fields will be familiar to privacy advocates, in the sense that legislated accountability frameworks, built around the core privacy principles developed by the OECD and the ILO, are the key to ensuring an appropriate balance between the protection of privacy and the conduct of surveillance. for more detials http://www.iima.org/CIIMA/CIIMA%205.2%2057%20Cox-6.pdf
Related Questions
drjack9650@gmail.com
Navigate
Integrity-first tutoring: explanations and feedback only — we do not complete graded work. Learn more.