LittleBrother is watching you
If you happen to be reading this article online from your
computer at work, your boss may be reading over your shoulderelectronically. New technologies allow employers to check
whether employees are wasting time at recreational Web sites or
sending unprofessional e-mails. But when do an employer's
legitimate business interests become an unacceptable invasion of
worker privacy?
By Miriam Schulman
Last year, a software package came on the market that allows employers
to monitor their workers' Internet use. It employs a database of 45,000
Web sites that are categorized as "productive," "unproductive," or
"neutral," and rates employees based on their browsing. It identifies the
most frequent users and the most popular sites. It's called LittleBrother.
Though the title is tongue-in-cheek, LittleBrother does represent the
tremendous capabilities technology has provided for employers to keep
track of what their work force is up to. There are also programs to search
e-mails and programs to block objectionable Web sites. Beyond installing
monitoring software, your boss can simply go into your hard drive, check
your cache to see where you've been on the Net, and read your e-mail.
Did you delete that message you sent about his incompetence? Not good
enough. The e-mail trash bin probably still exists on the server, and
there are plenty of computer consultants who can retrieve the
incriminating message.
All told, such monitoring is a widespread-and-growing-phenomenon.
Looking just at e-mail, a 1996 survey by the Society for Human Resource
Management found that 36 percent of responding companies searched
employee messages regularly and 70 percent said employers should
reserve the right to do so.
The Law
Legally, employees have little recourse. The most relevant federal law,
the 1986 Electronic Communications Privacy Act, prohibits unauthorized
interception of various electronic communications, including e-mail.
However, the law exempts service providers from its provisions, which is
commonly interpreted to include employers who provide e-mail and Net
access, according to David Sobel, legal counsel for the Electronic Privacy
Information Center in Washington, D.C. A federal bill that would have
required employers at least to notify workers that they were being
monitored failed to come to a vote from 1993 to 1995.
The situation in the courts is similar. "There aren't many cases, and they
tend to go against the employee," according to Santa Clara University
Professor of Law Dorothy Glancy. "Often, court opinions take the point of
view that when the employees are using employers' property—the
employers' computers and networks—the employees' expectation of
privacy is minimal." When courts take this view, Glancy continues, "if
employees want to have private communications, they can enjoy them
on their own time and equipment."
In a presentation on employee monitoring, Mark S. Dichter and Michael
S. Burkhardt of the law firm Morgan, Lewis & Bockius explain that courts
have tried to balance "an employee's reasonable expectation of privacy
against the employer's business justification for monitoring."
For example, in Smyth v. Pillsbury Co., Michael Smyth argued that his
privacy was violated and he was wrongfully discharged from his job after
his employers read several e-mails he had exchanged with his
supervisor. In the electronic messages, among other offensive
references, he threatened to "kill the backstabbing bastards" in sales
management.
The court ruled that Smyth had "no reasonable expectation of privacy"
on his employer's system, despite the fact that Pillsbury had repeatedly
assured employees that their e-mail was confidential. In addition, the
court held that the company's interest in preventing "inappropriate and
unprofessional" conduct outweighed Smyth's privacy rights.
Privacy as a Moral Matter
But the fact that employee monitoring is legal does not automatically
make it right. From an ethical point of view, an employee surely does not
give up all of his or her privacy when entering the workplace. To
determine how far employee and employer moral rights should extend,
it's useful to start with a brief exploration of how privacy becomes a
moral matter.
Michael J. Meyer, SCU professor of philosophy, explains it this way:
"Employees are autonomous moral agents. Among other things, that
means they have independent moral status defined by some set of
rights, not the least of which is the right not to be used by others only as
a means to increase overall welfare or profits."
Applying this to the workplace, Meyer says, "As thinking actors, human
beings are more than cogs in an organization—things to be pushed
around so as to maximize profits. They are entitled to respect, which
requires some attention to privacy. If a boss were to monitor every
conversation or move, most of us would think of such an environment as
more like a prison than a humane workplace." But, like all rights, privacy
is not absolute. Sometimes, as in the case of law enforcement, invasions
of privacy may be warranted. In "Privacy, Morality, and the Law," William
Parent, also a philosophy professor at SCU, sets out six criteria for
determining whether an invasion of privacy is justifiable:
• For what purpose is the undocumented personal knowledge sought?
• Is this purpose a legitimate and important one?
• Is the knowledge sought through invasion of privacy relevant to its
justifying purpose?
• Is invasion of privacy the only or the least offensive means of obtaining
the knowledge?
• What restrictions or procedural restraints have been placed on the
privacy-invading techniques?
• How will the personal knowledge be protected once it has been
acquired?
These questions can offer guidance as we consider both sides of the
controversy.
The Case for Workplace Monitoring
If an employer uses a software package that sweeps through office
computers and eliminates games workers have installed, few people will
feel such an action is an invasion of privacy. Our comfort with this kind of
intrusion suggests that most of us don't fault an employer who insists
that the equipment he or she provides be used for work, at least during
working hours.
Why, then, should we balk when an employer tries to ensure that his
equipment is not being used to surf non-job-related Web sites? Hours
spent online browsing the recipe files of Epicurious are no less a breach
of the work contract than games playing.
"The underlying principle is value for money," says Joseph R. Garber, a
columnist for Forbes magazine. "If you don't deliver value for money, in
some sense, you're lying."
Garber gives this illustration: If we hired someone to paint our house,
and they didn't do the northern wall, we would feel moral outrage.
Similarly, if we pay workers to give a good day's work and they are,
instead, surfing X-rated Web sites, we are also morally outraged.
Such "cyberlollygagging" is no small problem. A study by Nielsen Media
Research found that employees at major corporations such as IBM,
Apple, and AT&T logged onto the online edition of Penthouse thousands
of times a month.
Beyond worry about lost productivity, employers have legitimate
concerns about the use of e-mail in thefts of proprietary information,
which, according to the "Handbook on White Collar Crime," account for
more than $2 billion in losses a year. The transfer of such information
can be monitored by programs that search employee e-mails for suspect
word strings or by employers simply going into the employee's hard drive
and reading the messages.
In a case last year, a former employee of Cadence Systems was charged
with stealing proprietary information and intending to bring it to the rival
software maker Avant! According to prosecutors, before leaving Cadence,
he e-mailed a file containing 5 million bytes to a personal e-mail account.
Such large messages suggested that he might be sending source code
for the company's products and prompted Cadence to contact the police.
Electronic communications can pose other dangers for employers besides
breached security and lost productivity. More and more, employers are
being held legally liable for the atmosphere in the workplace. Although
the case was ultimately dismissed, employers worry about litigation like
the $70-million suit brought by Morgan Stanley employees, who claimed
that racist jokes on the company's electronic mail system created a
hostile work environment.
Sexual harassment cases also often hinge on allegations of a hostile work
environment, which might be evidenced by employees downloading or
displaying pornographic material from the Web or sending off-color emails. "The days of guys putting naked bunnies up on their computer
screens are gone because that's actionable stuff," Garber comments.
To prevent such abuses, Garber argues, employers need to be allowed to
monitor: "We can't make corporations responsible for stopping
unacceptable forms of behavior and then deny them the tools needed to
keep an eye out for that behavior."
The Case Against Workplace Monitoring
Consider this scenario: It's lunch hour. An employee writes a note to her
boyfriend. She puts it in an envelope, affixes her own stamp, and drops
it in the basket where outgoing mail is collected. Does the fact that the
pencil and paper she used belong to her employer give her boss the right
to open and read this letter?
Although most people would answer no, that's just the argument
employers are making to defend monitoring e-mail, according to the
Electronic Privacy Information Center's Sobel: Employers claim that
because they own the computer, they have the right to read the e-mail it
produces. The situation is complicated by the fact that work and personal
life are not as clearly delineated as they once were, due, in part, to the
very technologies that are being monitored. Employees may
telecommute, doing much of their business through e-mail and the Net.
Often, they work a good deal more than 40 hours a week. If they take a
moment to send a message to Aunt Margaret in Saskatoon, do they not
have a right to expect their e-mail will be confidential?
"Most people don't work 8 to 5," says Anthony Pozos, senior vice
president for human resources and corporate services at Amdahl Corp.
"We pay people to do a job; we don't really pay by time increment.
Employees probably do use our e-mail or Web access for personal
matters; it's analogous to using the telephone. People do sometimes
need to do personal things on the job, but as long as it doesn't interfere
with work, that should be okay."
Another ethical consideration in the debate is fairness. Usually, it's not
corporate higher-ups who are subject to monitoring, but line workers.
That's particularly true when it comes to key-stroke monitoring, a form
of electronic surveillance that measures the speed of data entry.
According to an article in Public Personnel Management, "The majority of
employees being electronically monitored are women in low-paying
clerical positions."
Then there's Parent's question about whether the invasion of privacy
(represented by monitoring) is the only or the least offensive means of
obtaining the information employers seek. In a survey conducted by PC
World, slightly more than half of the executives interviewed were
opposed to monitoring employees' Internet use. Scott Paddock, manager
of PC Brokers, told the magazine, "First, I trust my employees; that's
why they work for me. If there were to be any problems with an
employee, those problems would present themselves without the need
for me to get involved in cloak-and-dagger shenanigans. And second, if I
spent time monitoring their Web usage, I would be just as guilty of
wasting time as my behavior implies they are."
Trust is often mentioned by opponents of monitoring as a major ethical
issue. As Rita C. Manning writes in the Journal of Business Ethics, "When
we look at the workplaces in which surveillance is common, we see
communities in trouble. What is missing in these communities is trust."
If, Manning continues, employers create trust, employee behavior "will
conform to certain norms, not as a result of being watched, but as a
result of the care and respect which are part of the communal fabric."
Some Possibilities for Common Ground
It is possible to moot many of these ethical issues by arguing that
monitoring all comes down to a question of contract. That is the view of
David Friedman, an economist and professor at SCU's School of Law.
"There isn't an agreement that is morally right for everybody. The
important thing is what the parties agree to," he says. "If the employer
gives a promise of privacy, then that should be respected." If, on the
other hand, the employer reserves the right to read e-mail or monitor
Web browsing, the worker can either accept those terms or look
elsewhere for employment, Friedman continues.
Friedman's argument doesn't address the problems of lower-income
workers who may not have a choice about whether to accept a job or, if
they do, may be choosing between entry-level positions where
monitoring is a feature of the work environment.
But he does point to an area where some common ground may exist
between opponents and proponents of monitoring. Most parties to the
debate agree that companies should have clear policies on electronic
surveillance and that these should be effectively communicated to
employees.
A recent study by International Data Corp. suggests that such clarity
does not currently prevail. A survey of employees at 110 businesses
showed that 45 percent thought their company had no policy on e-mail
at all. Most of those who did know the company policy had either learned
it by word of mouth or were directly involved in writing it.
Spelling out company policy "is our bottom line," says Sobel. "We would
like to see an outright prohibition on e-mail monitoring in the workplace,
but, at the very least, there needs to be notice to employees if that's the
policy."
Pozos believes that involving employees in the creation of a monitoring
policy is also a way to find common ground. By bringing employees and
managers together to develop principles and guidelines for electronic
mail, Amdahl was able to create a policy that was acceptable to both
sides, Pozos says.
In any case, employers who reserve the right to monitor should attend to
the considerations Parent proposes, ensuring at least that the monitoring
serves a legitimate purpose and follows clear procedures to protect a
worker's personal life from unnecessary prying, either by LittleBrother or
by Big Brother.
1. Do you feel it is warranted for employers to monitor employees? Why?
2. If you use your companies tools to complete an activity, do you feel it is
warranted for your boss to view what you have done?
3. If you use your own computer, but an employers ISP (Internet Service
Provider) should they be allowed to view your email?
4. Is deleting a game off of your computer by your employer considered an
invasion of privacy? Why?