LittleBrother is watching you

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In case you are reading this article from your office computer, your boss might be reading electronically over your shoulder. The new technologies have allowed the employers to check whether the employees are wasting any time at the recreational websites or are sending any unprofessional emails. But when exactly do the legitimate business interests of the employer become unacceptable invasion of the worker’s privacy?

Previous year, software came on market which allowed the employers to monitor the internet use of their workers. The software package employs database of about 45,000 websites which are categorized as “unproductive”, “productive” or neutral”, and then it rates the employees based on the browsing they do. The software identifies most frequent users and most popular websites. It is known as LittleBrother.

This software, “LittleBrother” represents amazing capabilities which technology has given to the employers for keeping track of their workforce. There are also many programs for searching emails and for blocking the objectionable websites. Beyond installing the monitoring software, the boss can simply go in to your hard drive, in order to check the cache and to see where you have been on Net and to read you emails.

Well, did you delete the message which you sent about the incompetence of your boss? Not good enough. Probably the email trash bin still exists on server, and a number of computer consultants can retrieve that message.

Well, such monitoring of employees is widespread and it is a growing phenomenon. Simply focusing on email, a survey carried out by Society for Human Resource Development in 1996 found that about 36% of the companies searched their employees’ messages regularly and about 70% said that employers should have right of doing so.

boss and employee

The Law:

Talking legally, the employees have very little recourse. Federal law that is most relevant is the Electronic Communications Privacy Act of 1986. It prohibits intercepting different electronic communications if one is not authorized. This includes email. However, service providers are exempted from the provisions of the law. The law is commonly interpreted in order to include the employers providing Net and email access, states David Sobel who is legal counsel for Electronic Privacy Information Center in Washington, D.C. There was one federal bill which would have required from the employers to at least notify the workers about monitoring on them, but this bill failed to come to vote from the year 1993 to the year 1995.

There is a similar situation in courts. According to Dorothy Glancy who is professor at the Santa Clara University, There are not many cases in court, and usually they tend to go against employee. It is often that the court opinions take point of view that if the employees use the property of their employer – the networks and computers of their employer – the expectation of the employee regarding privacy is very low. Glancy further says that in case the employees want to have some private communication, they can have it on their own equipment and time.

In one presentation on the monitoring of employees, Michael S. Burkhardt and Mark S. Dichter of law firm Morgan, Lewis and Bockius tell that the courts try to balance the reasonable privacy expectations of employee against the business justifications of the employer for monitoring. For instance, in Smyth vs. Pillsbury Co., it was argued by Michael Smyth that he had his privacy violated and he was discharged from the job wrongfully after the employer read some of his emails which he exchanged with the supervisor. Among other various offensive references, in electronic messages, he had threatened “killing backstabbing bastards” who were working in the sales management. It was ruled by the court that Smyth did not have any reasonable expectation of the privacy on the system of his employer. It was despite this fact that the employer Pillsbury repeatedly had assured the employees that their emails were confidential. Court also held that interest of the company in preventing the “unprofessional and inappropriate” conduct outweighed the privacy rights of Smyth.

Privacy as Moral Matter:

Well, the fact of employee monitoring being legal doesn’t make it right automatically. From ethical view point, an employee doesn’t give up on all of her or his privacy when they enter a workplace. In order to determine how far the moral rights of employer and employee should extend, it will be useful to begin with brief exploration about how the privacy becomes moral matter.

The professor of Philosophy at SCU, Michael J. Meyer, explains it: the employees are moral agents who are autonomous. This means that the employees have an independent moral status which is defined by some rights, and one of them is that they should not be used by the other only as means of increasing the overall profits or welfare.

The Case for Monitoring at Workplace:

In case an employer uses some software package which sweeps through the computer in office and eliminates the games installed by workers, very few people will feel it to be invasion of their privacy. The comfort of employees with such intrusions suggest that most of the people do not fault employers insisting that equipment which she or he provided must be only be used for the work purposes, at least during the working hours.

The question is that then why should we be balking when employers try to make sure that their equipment isn’t being used for surfing the web sites that are not related to employee’s jobs? The numbers of hours that are spent browsing online the recipe files of the Epicurious are as much a breach of work contract as playing games is.

Value for money is the under lying principle according to Joseph R. Garber who is a columnist for the Frobes magazine. In case you are not delivering the value for money, you are lying in some sense. Garber gives the following illustration: In case we hire someone for painting the house, and that person does not do northern wall, a moral outrage will be felt by us. Similarly, in case we are paying the workers for giving good day’s work and the workers are found to be surfing some X-rated websites, we will be morally outraged.

This “cyberlollygagging isn’t a small problem. It was found in a study by the Nielsen Media Research that the employees at the major corporations like Apple, AT&T and IBM logged in to online edition of the penthouse thousands of times in a month.

The employers have to worry about the lost productivity as well as they have some legitimate concerns regarding use of email in the thefts of the proprietary information. According to “Handbook on the White Collar Crime” this accounts for losses above $2 billion a year. Such information’s transfer could be monitored by using programs which search the employee emails for the suspected word strings or by the employers simply reaching in the hard drive of their employee and reading messages.

In one case previous year, former employee of the Cadence Systems got charged with stealing the proprietary information and for intending to bring this information to rival software maker Avant! The prosecutors told that before that employee left Cadence, he emailed a file that contained five million bytes of data to a personal email account. It was suggested by such large messages that he might have been sending the source code of company’s products. This prompted Cadence to contact police.

Besides the lost productivity and breached security, there are other dangers as well which can be posed to employers by the electronic communications. Many employers are now being legally held liable for atmosphere at workplace. Although cases are dismissed ultimately, the employers do worry about the litigation such as $70 million suit which was brought by the employees of Morgan Stanley, claiming that a hostile environment was created by the racist jokes on electronic mail system of the company.

The case of sexual harassment also quite often hinge on the allegations of hostile working environment. This may be evidenced by the employee display or downloading the pornographic materials from web. Garber comments that the days when guys used to put naked bunnies on the computer screens have been long gone as this is actionable stuff.

In order to prevent abuses like these, Garber argues that the employers must be allowed monitoring. He says that the corporations cannot be made responsible for stopping the unacceptable behaviors and then deny these corporations the tools that are needed to keep a check on such behaviors.

The Case against monitoring at workplace:

Consider the scenario: It is a lunch hour. One employee writes note to her boyfriend. Then she puts that note in envelop, then puts a stamp on it that is her own, and then drops this envelope in basket where the outgoing mail will be collected. Now, does this fact that paper and pencil which she used belonged to the employer, give any right to her boss to open the envelope and read the letter?

Well, most people will answer no, but this is exactly the argument which employers make to defend the monitoring of emails, according to Sobel of Electronic Privacy Information Center: It is claimed by the employers that as they own computer, they do have a right of reading emails which the computer produces. Situation becomes complicated by this fact that the work and the personal life aren’t clearly delineated as once they were, and this is probably because of the technologies that the employees are monitoring. The employees might telecommute, doing most of the business via Net and email. It is often that employees work above 40 hours week. In case they take few minutes off in order to send message to their Aunt Margaret living in Saskatoon, don’t they have the right of expecting their email to be confidential?

Debate in the fairness is also a big ethical consideration. Usually, it is no the higher-ups in companies who are monitored, but are the line workers. This is particularly true with key-stroke monitoring. This is a form of the electronic surveillance which measure speed of the data entry. In an article published in Public Personal Management: Majority of the employees who are monitored electronically are women who are in low level clerical positions.

There is also this question of Parent’s about whether invasion of the privacy is only or least offensive way of obtaining information which employers seek. PC World carried out a survey, in which a little more than half of executives who were interviews were against monitoring the internet use of employees. Manger of the PC Brokers, Scott Paddock, told magazine that he trusts his employee first. In case there are any problems with any employee, the problems will automatically present themselves with out any need for him to get involved in the cloak and dagger shenanigans. Then he continued and said the second thing is that in case he spent time on monitoring the web usage of his employees, he would be as guilty as his employees in wasting time. If the employers build trust, the behavior of employees will automatically conform to the certain norms and not because of the fear of being watched, but rather because of care and the respect that are a part of communal fabric.

Some Possibilities for Common Ground:

Mooting many of the mentioned ethical issues is possible by arguing that the monitoring comes down to question of contract. This is the view of a professor at the SCU School of law and an economist, David Friedman. According to him, there is no agreement which is right morally for everybody. Important thing is what is agreed upon by the parties. In case promise of the privacy is given by employer, then it must be respected. And on the other hand, if employer reserves right of reading emails or monitoring web browsing, either the workers can accept these terms or they can look at other places to find employment.

The argument of Friedman does not address problems of the workers in lower income levels, who do not have any choice of accepting the job. Even if they do have a choice, they are likely to be choosing between the positions that are entry level and that have monitoring as feature of the work environment.

However, Friedman does point to one area where there might be some common ground between the proponents and the opponents of monitoring. It is agreed upon by the most parties to debate that the companies must have very clear policies regarding electronic surveillance of employees and these policies must be communicated effectively to them.

It is suggested by one recent study by the International Data Corp. that such clarity doesn’t currently prevail. It was showed by a survey of the employees at about 110 business that about 45% of the employees thought that company did not have any policy on the e-mail at all. And those who did know about the company policy had either known it by the word of mouth or they were involved directly in writing it.

It is believed by Pozos that involving the employees in creation of monitoring policy is another way of finding the common ground. Amdahl, by bringing together the manager and the employees to develop the guidelines and principles for the electronic mail, was able to create such a policy that was acceptable for both parties, Pozos says.

The employers reserving the right of monitoring their employees must attend to considerations which Parent proposes, making sure that monitoring serves legitimate purposes and follows the clear procedures to protect the personal life of a worker from the unnecessary prying, either by the LittleBrother or by the Big Brother.