The Constitution of the United States contains many fine words, but privacy is not among them. Nor does it appear in the Bill of Rights. In an era dominated by considerations of survival, when surveillance was laborious and clumsy and reserved for the British oppressor, individual privacy was not a pressing matter. If the framers valued privacy at all, it was primarily as a protection from the intrusions of government, not each other.

As the Republic flourished and privacy abuses became more sophisticated and pronounced, legislative remedies were sought to preserve and delineate privacy rights. But since the right to privacy is only constitutionally inferred, the issue remains a ward of the courts where it has been alternately assailed and defended.

Although a patchwork of laws now regulate everything from criminal surveillance to video rental histories, the United States has no comprehensive privacy protection law, and there are virtually no restraints on workplace surveillance.

Legislating privacy has proven problematic because abuses usually occur without the knowledge of the victims, and what laws do exist are largely ignored. The 1974 Privacy Act, for example, was a limp attempt to place limits on the use of social security numbers for nongovernmental purposes—an effort about as fruitful as the launch of the Titanic.

By the mid-1980s, privacy in the workplace was rapidly losing ground to the prying prowess of technology. In 1986, Congress sought to remedy the situation with the Electronic Communication Privacy Act, which was designed to deter the “unauthorized” interception of electronic communications. But before the bill became law, business was largely exempted from its provisions, and the ambiguity of the word “unauthorized” has since repeatedly returned the issue to the courts.

All the more reason to be troubled by a 1996 Pennsylvania District Court decision. In Smyth vs. The Pillsbury Company, the court ruled that not only could Michael Smyth’s employer snoop on him, but it could lie about its intent. As reported by Maura Kelly on Salon.com, Smyth was fired by Pillsbury for “inappropriate and unprofessional” remarks found in one of his emails. Smyth’s misdeed was sending a coworker a missive in which he described his employers as “back-stabbing bastards.” The Doughboy, it seems, took offense and dismissed Smyth, who promptly sued for wrongful termination. Smyth argued that his email could not be used as grounds for dismissal because Pillsbury had specifically assured its employees that “all email communication would remain confidential and privileged.” Furthermore, the company declared that email could not be intercepted and

used against workers “as grounds for termination or reprimand.” Smyth took the company at its word.

The judge was apparently more dismayed by Smyth’s gullibility than Pillsbury’s deliberate misrepresentation. Assurances of privacy notwithstanding, the court ruled that Smyth was essentially stupid for trusting his employer. His privacy rights were not violated, the judge determined, since “he shouldn’t have expected email messages sent through the company’s system to be considered private—even though he had been told by the company they would be.”

Perhaps Mr. Smyth was simply being prescient in his email assessment of Pillsbury.

Although the courts have frequently judged employer snooping to be “authorized,” willful prevarication has seldom enjoyed the protection of law. The incident is particularly worrisome because surveillance in the workplace is on the rise, and people are routinely fired for actions or communications they believed to be privileged. An American Management Association (AMA) survey queried 2,133 leading corporations and found that
73.5 percent “record and review employee communications and activities on the job.” And they act upon their findings. Forty people were fired by Xerox for disobeying computer usage strictures; 20 were terminated by The New York Times for sending naughty emails. Even the Navy got into the act by reprimanding 500 employees who circulated sexually candid emails at a supply depot.

Companies defend employee monitoring as a means of limiting legal liability and overseeing performance.

Sexual harassment complaints, managers note, are costly and plentiful, and corporations rightfully do not want to be viewed as conduits for materials that some will find offensive. Nor do corporations want their employees wasting time, money, and resources surfing the Internet for private amusement.

Yet monitoring practices go well beyond the storage and review of email files and the scrutiny of Internet usage. Surveillance includes review of personal computer files, capturing keystrokes, taping phone conversations, tracking numbers called and time spent on the telephone, listening to voice mail messages, and videotaping employees on the job. Some companies even install badge readers on bathroom doors. They probably want to track who is sitting down on the job.

Unlike the government, corporations need no “probable cause,” no subpoena, not even suspicion of misconduct to trap the communications of their employees. And while over 85 percent of the companies responding to the AMA survey claim to inform employees of their monitoring practices, they are only obliged by law to do so in Connecticut. Congress, for its part, has shown little concern for protecting workers from the possible excesses of corporate surveillance. In 1994, an American Civil Liberties Union-supported bill that would have safeguarded the privacy of workers and consumers was defeated.

Like television, which has become a de facto substitute for child care, electronic surveillance is becoming an invasive replacement for direct employee supervision.

Certainly, the proliferation of low-cost censorship and surveillance software makes electronic monitoring an attractive solution for managers who could not otherwise oversee the personal habits of employees. Software such as Sequel Technology’s Net Access Manager (not to be confused with Advanced Systems Concepts’ SEQUEL) and Optimal Networks’ Internet Monitor provide practical usage statistics and serve as gatekeepers for Internet access. Offerings such as Websense, Inc.’s Websense and JSB Software Technologies’ LittleBrother (a genial step down from Orwell’s omnipresent eye) allow the grouping of offensive or “unproductive” sites and the ability to block their access.

But the trend toward full-time tracking of workplace behavior is likely to have some unintended consequences. Andrew Leonard, writing for Salon.com, notes that “the Internet did not invent goofing off.” But he acknowledges that “it may have encouraged a shift in the allocation of goofing-off priorities.” At root, wasting time is a symptom of being bored

and not liking your job. Close one escapist avenue and another will emerge, but the problem of people giving less than full effort will remain.

Nor is downtime necessarily bad, particularly when a job requires creativity. If viewed as a continuum, the creative process usually includes a lot of seemingly
“unproductive” time before the final creative burst materializes. Productivity on demand is every employer’s fantasy, but ideas tend more toward evolution than spontaneous generation. For some, the generative process may include playing a computer game, surfing the ’Net, interacting with coworkers, or merely putting their feet up on the desk and thinking. Punish employees for being “unproductive,” and you may also be restricting their ability to generate new ideas. A limitation of surveillance software is that, while it can monitor activity, it cannot discern intent.

There is a commonly accepted bromide about how technology has changed the way people work. Loaded with cell phones, pagers, fax machines, and Internet connections, people can be productive in the car, at home, or while walking the dog. For many technology workers, the office is only as remote as a series of electronic tones and pulses. It is inevitable that as they take more work home, they will bring more home to work. Of necessity, employees who work at home late into the night will, upon returning to the office, attend to a certain amount of neglected personal business. If that includes shopping online for their children’s birthday presents, attaching a flow restrictor to the Internet seems counterproductive.

But perhaps the biggest liability of workplace surveillance is the implication of distrust. As a bond, trust is slow to develop, simple to break, and not easily mended.

Tarring all employees with the suspicion brush invites fear and resentment, and will force inappropriate behavior underground where it will erupt in unexpected and uncontrollable ways. If the employer’s dilemma is how to ensure that employees are doing their jobs and following company policies, they should first examine why they are substituting cameras, recording devices, and software for the responsibilities of management. If management is so disconnected from employees that it must rely on computer printouts to determine which people are and aren’t doing their jobs, the battle is already lost.

For the short term, employees concerned about workplace surveillance can limit their exposure by using separate email accounts with an outside Internet service provider and an encryption program. Further, before agreeing to take a job, workers can request written guidelines defining what is private and what the company views as fair game for surveillance. As the Pillsbury case showed, however, company assurances can prove meaningless.

One day soon, DNA fingerprinting, genetic profiling, and a hundred other privacy- encroaching technologies will be as common as the telephone. One day we will awaken to find cameras no bigger than bees hovering on every street corner, in every shop, in every office cubicle. Computer chips will have been sewn into our clothing and implanted in our bodies. Our comings and goings, preferences, and habits will all be tracked. We will be as private as vending machines; everything within available for perusal or purchase. It will be a dismal dawning to discover that nothing is sacrosanct, that no place is fully safe from the prying technological gaze. When we are finally trapped like zoo animals in a cage of electronic sensors, then the wrenching question will be asked: How the hell did this happen?

One day at a time.

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