Privacy Law and Policy Reporter
Anna Johnston and Myra Cheng
This is part one of a two part article. ‘Part 2: responses to electronic workplace surveillance — resistance and regulation’ will be published in the next issue of PLPR.
This article takes up the challenge of talking about privacy in the workplace — ,a site of potential conflict in which radically different views co-exist as to whether workers can or should have any expectations of privacy.
For as long as there has been employment, employees have been monitored. However, in recent years, as more affordable, less detectable monitoring devices ,have become available, and with a lack of adequate regulation, there has been an explosion in the use of electronic monitoring and surveillance devices in the workplace. A recent study by the American Management Association (AMA) found that almost 80 per cent of the largest companies in the US had engaged in some form of electronic surveillance over the previous year. This figure is more than double the rate recorded only five years ago: 35.3 per cent in 1997. Yet for some years now, concerns have been raised about the negative impact of electronic surveillance on employees and, by default, their employers.
The paradox of electronic surveillance in the workplace is that while it is much used, it is little understood. For Privacy NSW and its predecessor, the NSW Privacy Committee, the issue of workers’ privacy has long been a concern. Privacy NSW_has published three research reports and advocated for law reform to protect employees’ privacy rights. Workplace privacy has been of particular concern 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:
Monitoring and surveillance includes:
This article focuses on the use of electronic surveillance technologies, and the conflict arising from the rapid adoption of such technologies in the workplace. The first section of Part 1 provides an overview of the development of workplace surveillance and the ethical and legal challenges it presents for society. The second section discusses the arguments put forward by privacy advocates and the concerns they raise regarding electronic performance monitoring in particular. Part 2, to come, analyses two industrial conflicts which have critically shaped the debate regarding the regulation of workplace surveillance in NSW and the US. The article 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.
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. These can range from the office worker whose supervisor reads his or her email messages to the grocery store cashier whose bar code scanner records the speed at which he or she is working. 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 American firms that admitted to conducting workplace surveillance in the recent AMA survey, almost half said they monitored employee phone calls, either by recording the information about calls made (43 per cent), or by actually listening to the calls themselves (12 per cent); 8 per cent stored and reviewed voicemail messages and 47 per cent stored and reviewed electronic mail of employees. A large percent monitored employees’ computers, either by recording computer use (time logged on, key strokes, time between entries and ,so on — 19 per cent), by storing and reviewing employees’ computer files ,(36 per cent), or by monitoring internet connections (63 per cent); 15 per cent admitted to video taping employee job performance and 38 per cent to videotaping for security purposes. ,As a result of these findings, Eric Rolphe Greenberg, director of management studies at the AMA, described workplace privacy as an oxymoron.
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 extensive 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.
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. Other commonly cited justifications included protection of business information, security and safety. ,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’ and that ‘[t]he rapid growth of workplace video surveillance is occurring in a regulatory vacuum’. However, as Sempill points out, this view obscures ,the role played by the contract of employment in creating a scheme of legal regulation. Supported by an ideology of the employer’s freedom to contract, the traditional norms of employment law not only permit electronic workplace surveillance but actually assume the legitimacy of such forms of employer conduct. Thus, in the process of omitting the relevance of the employment contract, the practice of electronic surveillance is frequently criticised without calling into question those legal and political relations upon which it is based.
Similarly, the notion that the law ,is lagging behind technological developments 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’. This perspective is essentially a form of technological determinism. In this instance, the language used adopts an interpretative bias suggesting that technology has a ,life of its own.
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.
The notion that technology is racing ahead of the law removes from view the role of human agency — the ‘flesh and blood decision makers’ who have chosen to utilise technology and engage in surveillance practices. Thus, as Sempill argues:
Technological 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.
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. The topic has been sensationalised with article titles such ,as ‘Big Brother at Work’, ‘Bigger Brother’, ‘Why your boss is bugging you’ and ‘The boss never blinks’. While 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. Furthermore, the consistent language choice reflects ,a negative attitude towards electronic surveillance in particular.
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 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’. Given our complex and often contingent relationship with surveillance, they argue that ‘surveillance is neither good nor bad but rather dangerous’.
The particular danger of surveillance lies in its ability to become embedded and therefore hidden; unscrutinised ,and therefore unaccountable.
Haggerty and Ericson describes the modern surveillance system as an emerging ‘surveillant assemblage’ . As they point out, surveillance systems operate by abstracting human bodies from their territorial settings and separating them into a series of discrete data flow. This information is then reassembled into distinct and virtual ‘data doubles’ which can be scrutinised and targeted for intervention.
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 the first step in developing appropriate accountability frameworks.
In the following section, this article 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.
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, the International Labour Organisation (ILO) developed a voluntary code on the protection of workers’ personal data. 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. In NSW we have the Workplace Video Surveillance Act 1998 (NSW), which was introduced in 1998 after a turbulent history (discussed in Part 2 ,of this article).
Notwithstanding the widespread influence of liberal privacy discourse, some writers have questioned 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’. Others yet have simply demanded that we give up our desire for privacy. In 1999, the Chief Executive of Sun Microsystems made the infamous comments: ‘You already have zero privacy. Get over it.’ These perspectives run the risk of sounding unduly fatalistic and uncritically accepting of the technological imperative — an imperative which implies that the invention of each new technology demands its development ,and application. However, there are numerous examples of technologies which, though technically possible, are not always developed or, when developed, are rejected.
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 suggests that our normative understanding will improve with greater clarity in the meanings attributed to the terms public and private. Moreover, we should not become complacent about asserting our privacy claims and arresting the shrinkage of the private domain. On the contrary, we should be constantly vigilant against the intrusion of various modern technologies into our lives. As Sewell and Barker argue,
... [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.
The protection of privacy therefore remains relevant and integral to the dignity and autonomy of individuals,,at least within those cultures 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’. The main reasons for undertaking performance monitoring ,is to improve productivity, to ensure work quality and to aid performance evaluation.
‘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. Performance monitoring can also be undertaken through the use of monitoring software tools. For example, the ‘Investigator’ software enables an employer to log all employee internet and email use and has the ability to record every keystroke made, every program used, and every file opened or copied. The collected information can then be automatically emailed to the employer in a searchable report.
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 counterproductive 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 two 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 ‘substantial risk of low back injuries’. The work was found to be physiologically demanding and at a level which many workers would not ,be capable of sustaining over long periods.
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. These health problems can in turn lead to increased absenteeism and employee turnover, and result in 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. 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. 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.
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.
The next part of this article (9(10) PLPR) will analyse case studies to examine how employees, employers ,and government have addressed the controversy and conflict arising from the introduction of electronic performance monitoring systems.
Anna Johnston is the NSW Deputy Privacy Commissioner. Myra Cheng ,is a Research and Policy Officer with Privacy NSW, the Office of the NSW Privacy Commissioner. Thanks to Dr Ben Searle, Macquarie University, for his overview of the relevant organisational psychology literature. The two parts of this article were presented as a conference paper on ,28 November 2002 to the International Conference on Personal Data Protection hosted by the Personal Information Dispute Mediation Committee, Korea Information ,Security Agency Seoul, Korea.
 Nebeker D M and 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.
 American Management Association Workplace Monitoring and Surveillance Survey New York 2001.
 As above.
 Vorvoreanu M and Baton C H Examining Electronic Surveillance in the Workplace: A Review of Theoretical Perspectives and Research Findings paper from Conference of the International Communication Association June 2000 (Acapulco Mexico) p 3.
 In 1998, the Privacy and Personal Information Protection Act 1998 (NSW) abolished the NSW Privacy Committee and replaced it with a statutorily independent Privacy Commissioner. The Office of the Privacy Commissioner is known ,as Privacy NSW.
 Privacy Committee of NSW Invisible Eyes: Report on Video Surveillance in the Workplace Sydney 1995; Privacy Committee of NSW Drug Testing in the Workplace Sydney 1992; Privacy Committee of NSW The Privacy Aspects of Employment Practices in the Private Sector: Employment Guidelines Sydney 1979.
 Victorian Law Reform Commission Workplace Privacy: Issues Paper Victoria 2002 p xii.
 As above p xii.
 Above note 4 p 6.
 Above note 4 p 6.
 Above note 2 p 6.
 Above note 2 p 6.
 Auchard E ‘Big Brother really is watching you’ The Vancouver Sun 2 June 2001 p 2 at 2.
 Above note 4 p 8.
 Above note 2.
 Above note 4 p 8.
 Above note 6 (1995) p 4.
 Above note 6 (1995) p 53.
 Sempill J ‘Under the lens: electronic workplace surveillance’ (2001) 14 Australian Journal of Labour Law 111 at 114.
 As above.
 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.
 Above note 19 at 114.
 Above note 19 at 113.
 Above note 19 at 115.
 Above note 19 at 115.
 Orwell G Nineteen Eighty-Four Penguin Books London England 1989.
 Lawton V ‘Big brother at work’ Toronto Star 10 November 1997 p C1.
 Nicholls S ‘Bigger brother’ The Weekend Australian 7 August 1999 ,p 46.
 Long S ‘Why your boss is ,bugging you’ Australian Financial Review 27 June 1998 p 26.
 Koepp S ‘The boss never blinks’ Time 28 July 1986 p 46.
 Above note 4 p 9.
 Words associated with the topic include ‘snooping’, ‘snoopers’, ‘sneaking’, ‘spying’, ‘e-spying’ and ‘prying’.
 Sewell G and Barker J R ‘Neither good, nor bad, but dangerous: surveillance as an ethical paradox’ (2001) 3 Ethics and Information Technology 183 at 183.
 As above at 192.
 Above note 33 at 191.
 Haggerty K D and Ericson R V ‘The surveillant assemblage’ (2000) 51(4) British Journal of Sociology 605 at 605.
 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’.
 Protection of Workers’ Personal Data an ILO Code of Practice Geneva 1997.
 Code of Practice on Human Resources Management 2001 (HK) ,and the Employment Practice Data Protection Code (Part 1-4) 2002 (UK).
 Rosenberg J M The Death of Privacy Random House New York 1969; Whitaker R The End of Privacy? How Total Surveillance is Becoming a Reality New Press New York 1999; Brin D The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? Addison-Weasley Reading MA 1998.
 McNally S quoted in Markoff J ‘Growing compatibility issues: computers and user privacy’ The New York Times 3 March 1999 p A1.
 See Pacey A The Culture of Technology B Blackwell Oxford England 1983.
 Dr Daniel Chandler, University of Wales, cites the lack of commitment to developing alternative energy sources: <www.abcer.ac.uk>.
 Marx G ‘Murky conceptual waters: the public and the private’ (2001) 3 Ethics and Information Technology 157 at 160.
 As above.
 Above note 33 at 186.
 NSW Law Reform Commission Surveillance: An Interim Report No 98 Sydney NSW 2001 p 115.
 As above.
 Wright C and Lund J ‘Best-practice taylorism: “Yankee speed-up” in Australian grocery distribution’ (1996) 38(2) Journal of Industrial Relations 196 at 201.
 Above note 47 p 116.
 Above note 47 p 116.
 National Institute for Occupational Safety and Health Application Manual for the Revised NOISH Lifting Equation NOISH Publication 1994 at 96-110 as cited in Wright C and Lund J ‘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.
 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 Wright C and Lund J as above at 6.
 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.
 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.
 Flanagan, above note 54 ,at 1264.
 Flanagan, above note 54 ,at 1264.
 Kidwell R E and Bennett N ‘Employee reactions to electronic control systems, the role of procedural fairness’ (1994) 19(2) Group & Organizational Management 203 at 208.
 Leventhal G S ‘What should ,be done with equity theory? New approaches to the study of fairness ,in social relationships’ in Gergen K, Greenberg M and Willis R (eds) Social Exchange: Advances in Theory and Research Plenum New York 1980 p 30.