Electronic surveillance

1 January 2017

Electronic surveillance in the workplace Electronic Surveillance in the Workplace: Concerns for Employees and Challenges for Privacy Advocates Anna Johnston and Myra Cheng Paper delivered 28 November 2002 International Conference on Personal Data Protection Hosted by Personal Information Dispute Mediation Committee, Korea Information Security Agency Seoul, Korea Ms Anna Johnston is the NSW Deputy Privacy Commissioner. Ms Myra Cheng is a Research & Policy Officer with Privacy NSW, the Office of the NSW Privacy Commissioner.

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The authors gratefully acknowledge the assistance of Dr Ben Searle, Macquarie University, in providing an overview of the relevant literature from the field of organisational psychology. Introduction This paper takes up the challenge of talking about privacy in the workplace – a site of potential conflict in which there may be co-existing radically different views on whether workers can or should have any expectations of privacy. As long as there has been employment, employees have been monitored.

Nebeker D M & B C Tatum, “The effects of computer monitoring, standards and rewards on work performance, job satisfaction and stress” (1993) 23(7) Journal of Applied Social Psychology 508 at 508. However, in recent years, with an environment of affordable technology, the availability of less easily observable or detectable monitoring devices, and a lack of adequate regulation, there has been an explosion in the use of electronic monitoring and surveillance in the workplace.

A recent study by the American Management Association (AMA) found that almost 80% of the largest companies in the US had engaged in some form of electronic surveillance over the previous year. American Management Association, Workplace Monitoring and Surveillance Survey, (New York: 2001). This figure is more than double the rate recorded only five years ago: 35. 3% in 1997. Ibid. Yet for some years now, concerns have been raised about the negative impact of electronic surveillance on employees and, by default, their employers.

The Office of the Privacy Commissioner is know as Privacy NSW. the issue of workers’ privacy has long been a concern. We have published three research reports Privacy Committee of New South Wales, Invisible Eyes: Report on Video Surveillance in the Workplace (Sydney: 1995), Privacy Committee of New South Wales, Drug Testing in the Workplace (Sydney: 1992), Privacy Committee of New South Wales, The Privacy Aspects of Employment Practices in the Private Sector: Employment Guidelines, (Sydney: 1979). and advocated for law reform to protect employees’ privacy rights.

Workplace privacy has been of particular concern to us because vast amounts of personal information are passing into corporate hands where it is far more comprehensive, detailed (although not necessarily accurate), intrusive and difficult to challenge than information held by the state. Currently, workplace practices which may affect employee privacy fall into four categories: (i) monitoring and surveillance; (ii) physical and psychological testing (including pre-employment testing, drug-testing and the use of DNA data); (iii) searches of employees and their property; and (iv) the collection, use and disclosure of workers’ information.

Victorian Law Reform Commission, Workplace privacy: issues paper (Victoria: 2002) at xii. Monitoring and surveillance includes: * video and audio surveillance and monitoring; * monitoring of employees’ computer use and content (eg email usage, internet connection, computer files and keystroke speed); and * biometric monitoring and surveillance. Ibid, at xii. This paper focuses on the use of electronic surveillance technologies, and the conflict arising from the rapid adoption of such technologies in the workplace.

Part 1 provides an overview of the development of workplace surveillance practices and the ethical and legal challenges they present for society. Part 2 discusses the arguments put forward by privacy advocates and the concerns they raise regarding electronic performance monitoring in particular. Part 3 analyses two industrial conflicts which have critically shaped the debate regarding the regulation of workplace surveillance.

This paper concludes with an argument that electronic monitoring and surveillance should not remain a managerial prerogative, and that employee participation and government intervention is crucial in determining the appropriate balance to be struck between employees’ expectations of privacy and employers’ legitimate interests in undertaking workplace surveillance. I. 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.

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.

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