Privacy in America: Electronic Monitoring

Legislative Briefing Kit on Electronic Monitoring

(Access this report for more detailed discussion of the issue.)

Employers love to keep tabs on their workers. And technology now makes it easy for companies to monitor you – from punch-in to quitting time.

Employers can read you e-mail, look at your personal computer files and eavesdrop on your phone calls. They can film you with hidden video cameras not only in public areas, but in locker rooms and even restrooms.

Since employees don’t usually have access to their own electronically stored data, they can’t correct inaccurate information. Nor can employees control which third parties are given access, be they creditors, insurance agents or landlords.

Although it’s often done without your knowledge, this kind of info-gathering and sharing is almost always legal. This is because there are no laws regulating electronic surveillance in the private sector workplace.

Electronic surveillance in the workplace is a major threat to your right to privacy.

NOWHERE TO HIDE

Employers have a legitimate interest in monitoring work to ensure efficiency and productivity. But electronic surveillance often goes well beyond legitimate management concerns and becomes a tool for spying on employees. A few years ago, postal workers in New York City were horrified to discover that management had installed video cameras in the restroom stalls. Female workers at a large Northeastern department store discovered a hidden video camera installed in an empty office space that was commonly used as a changing room. Waiters in a large Boston hotel were secretly videotaped dressing and undressing in their locker room.

Although in each of these instances the employer claimed it was concerned about theft, no illegal acts were ever uncovered. But the employees were robbed of their dignity and personal privacy.

IT’S EVERYWHERE, AND IT’S GROWING

Electronic surveillance takes different forms –

Computer data banks help employers track employees’ past employment records, financial status and medical histories. Although there are laws that prevent an employer from sharing intimate employee information with individuals outside the company, there are few restrictions on an employer’s right to share it with people on the inside.

According to a 1993 survey by the computer magazine Macworld, 20 million Americans were subject to computer monitoring. Given the enormous growth in computerization, that figure is sure to have climbed substantially since the survey was conducted.

Telephone monitoring affects huge numbers of employees and consumers. It is estimated that employers eavesdrop on 400 million telephone calls every year. Although the federal wiretap law forbids eavesdropping unless one of the parties to the conversation consents, another law, the Electronic Communication Privacy Act of 1986, allows employers to secretly listen to “job-related” conversations. This basically gives employers the freedom to listen to any and all telephone conversations, since an employer can argue that it takes several minutes to determine whether a conversation is personal or job-related.

“It’s like being connected by an umbilical cord to the computer. There is no privacy.”
– Testimony of an airline reservations clerk describing her telephone headset which monitors the length and content of all telephone conversations she holds during the workday, and also times how long she is away from her desk on bathroom and lunch breaks.

A FAIR ELECTRONIC MONITORING POLICY

In order to prevent abuses, employers can and should adopt a policy that includes the following features:

• notice to employees of the company’s electronic monitoring practices;
• use of a signal to let an employee know when he or she is being monitored;
• employee access to all personal electronic data collected through monitoring;
• no monitoring of areas designed for the health or comfort of employees;
• the right to dispute and delete inaccurate data;
• a ban on the collection of data unrelated to work performance.
• restrictions on the disclosure of personal data to others without the employee’s consent.

WHAT’S NEXT?

Major new threats to employee privacy, such as genetic testing and “active badges” – clip-on microcomputers that allow an employer to track a worker’s movements electronically – are just over the horizon. Increasingly, members of the American workforce are being treated like pieces of equipment.

More than ever before, we need new laws to protect our right to privacy at work.

SOURCES: “Bosses with X-Ray Eyes – Special Report on Electronic Privacy,” Macworld, July, 1993; Office of Technology Assessment, “The Electronic Supervisor: New Technology, New Tensions,” 1987; E. Hendricks, Your Right to Privacy, ACLU Handbook, 1990.

WHAT WE ARE DOING

Privacy – the right to be left alone – is one of our most cherished rights. Yet because so few laws protect our privacy, the ACLU’s campaign for privacy in the workplace is very important – particularly in the private sector.

In 1988, through the efforts of the ACLU, other privacy advocates, and the labor movement, employees achieved a major victory when Congress passed the Employee Polygraph Protection Act, which protected them from workplace lie detector tests under most circumstances. But in 1994, Congress failed to pass the Privacy for Consumers and Workers Act, which would have further reduced monitoring abuses.

The ACLU still supports federal legislation. We are also working in the states to get protective laws passed. By mid-1997, only the state of Connecticut had acted, and its restrictions on employee monitoring were limited to banning monitoring “in areas designated for the health or personal comfort of employees.”

In 1996 the ACLU launched a campaign to alert the American public to the dangers posed by electronic monitoring and to give activists the tools to bring about reform. Our educational videotape, Through the Keyhole: Privacy in the Workplace — An Endangered Right, has been featured on national television and at union meetings nationwide.

WHAT YOU CAN DO

1) Learn more about the issue. Order a copy of our video Through the Keyhole: Privacy in the Workplace – An Endangered Right and share it with family, friends, and co-workers ($7 plus shipping, call 800-775-ACLU to order.) Feel free to duplicate the tape at will.

2) Get a copy of our 1996 report, Surveillance Incorporated., which documents the increase in various forms of employer surveillance and breaks down privacy laws state by state. This free report is available through our website or our 800-number.

3) Write your elected officials urging them to support workplace privacy legislation. For tips on writing your elected officials as well as sample letters, visit the “In Congress” section of our website under “tips” or send a request entitled “tips request” to KearneyCLU@aol.com or fax (202) 546-1440.

4) Want to do more? Contact the ACLU’s Campaign for Fairness in the Workplace to find out how you can personally help to get legislation passed. Write ACLU Campaign for Fairness in the Workplace, 166 Wall Street, Princeton, NJ 08540, fax (609) 683-1787 or e-mail Rebloclu@aol.com.