The Privacy in the Workplace and the Use of Technology - Term Paper Example

The Privacy in the Workplace and the Use of Technology Abstract Many pundits have argued that technology at the workplace increases efficiency and productivity yet concerns are increasingly rising about privacy in the workplace. Some years back, monitoring of employees was done physically through observation. Over the past few decades, employers have been presented with exceptional ability to monitor just about every facet of a worker’s life at workplace. Furthermore, telecommuting is raising its stake in the modern business world and thus, some circumstances may result in employees being monitored by their employers even outside of their working places. Every employee has some expectations e.g. privacy- even at their workplaces. On the other hand, upon employment, an employer has some expectations from the employee (Pittard, 2003). This paper takes into account the major difficulty that exists between balancing the expectations of the employer and those of the employee. In addition, the paper analyses the Australian common law and legislative protections as well as examining the underlying policy considerations. It will be argued that the existing laws should be changed to guarantee privacy at workplaces from both parties in the employee-employer relationship. How Has Privacy in the Workplace Been Affected By the Increased Use of Technology in Today's Global Environment? Workplace Privacy in a Technology-Driven Environment (Australia) The past decade saw advances in technology rise at an alarming rate and, consequently, resulting in numerous changes in the business environment, affecting just about all facets of working life. People reach each other in a blink of an eye at progressively low costs. Workers, co-workers, and clients no longer need to physically meet to conduct business; alternatively, they carry out transactions from their homes, distant offices all over the world, and even while travelling, thanks to new technologies that are shaping the ancient business world to modern business world (Pittard, 2003). It has been argued that these technological changes come with numerous opportunities and offer a variety of services, both have a common benefit: augmented efficiency and productivity. Many companies across the world have been swift in implementing some of these new technologies with an aim of bettering production and efficiency levels. On the other hand, Pittard (2003) argues that relationships at workplaces will get worse if employees will continue to work from different places (telecommute) other than the work office due to the loss of face-to-face interactions which improved their interpersonal skills. Many across Australia have been carrying out discussions regarding the adequacy of workplace privacy laws (Pittard, 2003). Technology has arguably been making people’s work easier just in the same way as it has been making it easy for employees at workplaces to keep track of a colleague’s activities (Woods, 2004). Progressive advances in technology, especially in the area of electronic communications (emails), have increased the capacity at which an employee can monitor the activities of a colleague or an employer monitoring the activities of an employee, yet the laws of privacy have not been stepped up. The introduction of Commonwealth privacy laws was aimed at providing a privacy scheme that is clear and consistent. In addition, this privacy scheme was to comply with the international obligations of Australia (Woods, 2004). These intents were never met, thus leaving gaps in the privacy scheme that arose, later to be filled by state governments via the introduction of a number of legislative measures, for instance employee record exemption, so as to overcome the inconsistency and deficiencies that existed in the federal legislation (Woods, 2004). Overview of Monitoring/Surveillance Technology Monitoring in general involves keeping track of a person, object or place so as to collect certain information or change/control the performance of the subject being monitored. Surveillance can either be hidden or openly conducted by different persons, organizations and/or agencies for various reasons. For instance, information collected through surveillance by law enforcement agencies is used to control or prevent criminal activities, media firms can collect information for the purposes of gaining access to commercially priceless information, and finally by other persons with an intent to keep track of the activities of his/her family member(s) (Quirk & Forder, 2003). Basically, practicing monitoring activities of any type can be viewed as a violation of an individual’s privacy since the ultimate goal of surveillance is to break the shield of privacy. Some analysts claim that the age of surveillance is close to that of history, but with recent developments in technology, surveillance activities have been made easier and this poses a major risk to privacy of workers. The Australian Law Reform Commission (ALRC), in ALRC 22 took into consideration the use of listening devices where it provided that the privacy of an individual with regard to private communications is subject to interruption only with the subject’s consent (Quirk & Forder, 2003). In addition, the act provides that legislative measures should be taken against those who carry out monitoring or surveillance activities secretly or without consent with an exception to law enforcing agencies collecting information for national security issues. Furthermore, Quirk and Forder (2003) report that ALRC 22 took into account the growing use of modern optical devices for surveillance, where it noted with great concern that there is a need to impose legislative control regarding the use of optical devices in surveillance. The conclusion of ALRC was that the use of public surveillance devices should not be regulated whereas devices planted to monitor people who otherwise in their position feel are safe and free from intrusion of privacy should be prohibited (Quirk & Forder, 2003). On the other hand, the ALRC provided exceptions in the act where they allowed for individuals to monitor the activities of others using optical surveillance only if the individual carrying out the surveillance has concrete grounds that he/she is doing so to monitor a certain act of crime and or the exception of the law enforcing agencies. Significant innovations have been made in the surveillance technology; with the introduction of the Closed Circuit Television (CCTV) which, when combined with other software, can be used to detect some critical issues. For instance, Woods (2004) argues that when used together with technologies that support character recognition, they can detect or rather recognize automatically the number plates of cars. According to Woods (2004), the reasons why number plates are extracted visually by automated number plate recognition systems is usually to compare and contrast the car records so as to identify unregistered vehicles and stolen cars. This software is believed to have eased intelligence issues of surveillance like live monitoring and also the costs of recording unwanted materials during a surveillance process is reduced significantly. In Australia, the Surveillance Devices Act 2004 (Cth) he use of surveillance devices by the federal law enforcement agencies and/or officers (Woods, 2004). Up to now, it is hard to define what a surveillance device is. According to Woods (2004), it may be a data surveillance device, a tracking device, listening device, or an optical surveillance device; or rather any device that uses a combination of any of the named two can be referred to as a surveillance device. On the other hand, a surveillance device cannot be defined or qualified to be a surveillance device unless it is as per the prescription of the regulators. In addition, the act provides that even federal officers obtain a warrant before they use a surveillance device in their monitoring activities (Surveillance, 2004). Some circumstances, especially where there is no need to enter a premises that is being monitored or interfere with anything, permission is not a must. The Intelligence Services Act 2001 (Cth) sets regulations for the surveillance activities of the Defence Signals Directorate and the Australian Secret Intelligence Service while the Australian Security Intelligence Organization Act 1979 (Cth) regulate the monitoring activities of Australian Security Intelligence Organization. In Australia, the Privacy Act protects or regulates personal information that is collected by the use of surveillance devices (Lebihan, 2004). Privacy According to the International Covenant on Civil and Political Rights (ICCPR), privacy is a human right (ICCPR, 1966). By becoming a signatory to ICCPR and the fact that Australia is a member state of the United Nations means that it qualifies to practice the concept of privacy as a human right. The basic understanding of privacy would be the right to be left alone or rather the right for one to protect personal activities off intrusion by other unknown or known people. Different people treat privacy differently depending on the context in which it is being addressed. It is very difficult to draw boundaries between private and public activities, but Australians believe that privacy intrusion is an important social issue that needs strict attention. Lebihan (2004) reports that the cyberspace environment is increasingly growing all over the world leading to increased concerns about privacy. Most human rights need to be leveled against the interests of the public and the community, a case that also applies to individual rights which encompasses privacy (Woods, 2004). On the other hand, workplace privacy has raised many questions over the right balance to be established such that employers can practice management and control of their employees while at the same time making sure that the protection of the employee rights is maintained. All this is to ensure that employees have a sense of independence and privacy and feel that they are being treated with some level of dignity. Technology as a Catalyst of Surveillance Surveillance is not a new aspect in the business world; employers have been keeping track of their employees’ activities in many different ways with the intent to reduce legal liability risks and ensure that their businesses run efficiently and profitably (Paterson, 2002). For years, top managers and business owners had to observe people physically during their working activities but thanks to new technologies they no longer need to walk around for they have been presented with exquisite ability to monitor, observe and test their employees. Technology has reduced the privacy of people at their workplaces, and this is noted by Lebihan (2004) who points out that surveillance software can record every letter, comma, keystroke, revision, and fingertip an employee makes irrespective of whether the data is saved or is on a shared network. An example of this case is where an employee may be drafting a tirade to a client or boss and in the process change his/her mind and decide to delete it. This process is irreversible as all the information will be recorded or can be retrieved by the system manager or administrator (Attorney-General, 2004). There are continued advances in computer software which can record work done on computers; recording all aspects of employee computer activities can now be easily done by employers which has left employee surveillance in a new dimension. Change in Nature of Work with Changing Technology Many workplaces have changed their structure and nature due to the advancing technologies. Employees are decreasingly going to there usual workplaces in favor of telecommuting (Attorney-General, 2004). Many are working from their homes or remotely and this trend is being adopted by many industries across the globe. Although some workplaces might still be centralized, face to face communication has been dominated by electronic communication. In addition, the streak between workplace and home fades away even more when employees wind up their tasks from home outside the working hours using wireless technology and portable gadgets. The existence of a workplace does not eliminate the fact that employees still work longer hours, with increasing trends reported over the last twenty years. In a 1982 survey, Lebihan (2004) reports that only 20% of Australian employees worked for fifty hours a week and beyond compared to 2002’s 25%. The questions that should be lingering our minds are why employees should not be allowed to email or bank during work time? Should a computer used or accessed by an employee outside of work be scrutinized similar to communications employees engage in at workplaces during normal work time or does the owner of the computer in use make any difference? Will it make any difference in cases where an employee uses both his/her and the employer’s technology? Employer vs. Employee Interests The Australian courts categorize internet facilities as the employer’s property, same category with other property like vehicles, documents, office equipment etc (Paterson, 2002). No business man will want his business resources to be used for personal interests of the employees. In addition, owners enjoy the general control of the workplace including its facilities and contents. Consequently, employees have to give up their expectations and rights to privacy and freedom from intrusion. This legal position of the employer leaves employees short of their expectations regarding internet access. Employees are usually concerned with their privacy thus they accept a reasonable level of surveillance. However, Paterson (2002) reports that many employees rarely sacrifice their privacy completely during work time. In addition, the design and use of computers has created some sense of privacy at the workplace. Accessing computer networks at workplaces usually requires some authentication where each employee has their own password that creates an illusion of anonymity. On the other hand, Paterson (2002) asserts that an employer is entitled to monitor electronic communications of their employees. In addition, an employer is threatened legally and financially and thus faces the task of keeping track of employees’ activities in case they use the computer equipment inappropriately. The most notable ways in which employees waste work time is through: personal emailing and internet surfing. This wasted time results in reduced productivity and profits. Another aspect an employer takes into account is the legal implications accompanying an employee’s use of the internet (Lebihan, 2004). Employees may abuse the internet during work time to and thus subjecting the employer to legal accountability. In a case where an employee, via internet and or email, breaches any legislative law the employee is held responsible. An example is where an employee accesses and downloads copyright files; the affected party may present an argument that portrays the employer as an irresponsible person who failed in his/her duty to control such misconduct. Legal Framework Common Law Some privacy interests are protected by common law but the Australian Constitution has little or no recognition of this argument. This can be evidenced by the case of the Australian Broadcasting Corporation against Lenah Game Meats Pty Ltd where existence of the invasion of privacy tort was seen to be in the future by the High Court. This is a clear indicator that Australia lacks solid federal and state legislative employee protections against violation of their personal privacy at workplaces. However, employees can defend themselves with claims of unfair dismissal found in the Australian Industrial Relations Commission (AIRC) under the Workplace Relations Act 1979 (Cth) (Paterson, 2002). The Legislative Framework A variety of laws at federal and state levels were the mother of a majority of the Australian privacy protections. Below follows a distinction between monitoring/surveillance legislation and privacy laws. Monitoring/Surveillance Legislation Australia has limited legislative protections that are related to surveillance and monitoring. The Surveillance Devices Act 1999 (Vic) (SDA) controls the use of monitoring devices by employers (Lebihan, 2004). Some people install, use and/or maintain listening devices with an intention of monitoring, recording or simply listen to a certain conversation. This is a criminal offence as stipulated by SDA, but it hardly treats workplace surveillance in a similar manner due to the restricted definition of private conversations and private activities. Australia has another act, the Telecommunications (Interception) Act 1979 (Cth) (TIA), that restricts interception of communications passing over a communication channel to those with telecommunication warrants to intercept the conversations. A review of the act excludes stored communications from the warrant process which means that stored (read and unread) emails are not provided for in the act as it only accounts for communications that are in progress. In a case where the employees have agreed to the employer’s interception and/or surveillance terms, the employer will not be breaching the SDA or TIA in any occasion (Telecommunications, 2004). Privacy Legislation The privacy protections of the Australian state are entirely focused on privacy of information or rather the manner in which the information of a person is collected, used and disclosed (Woods, 2004). The law provides for the right to access to and validate personal data collected if wrong. According to Latimer (2003), The Australian Privacy Act protects access to personal and sensitive information such as an individual’s age, sexual preferences, philosophical beliefs, health information and political opinions. Employee Record Exemption The Privacy Act’s provisions do no apply to employee records in private organizations when employee record exemption is in action (Woods, 2004). This exemption applies where the practice or act of an employer or former employer of the person in question is directly related to the individual’s employment relationship with a direct link between the act or practice and the employee record established. This exemption means that whenever an employer is collecting information or records of employee activities, it is unnecessary to consider the provisions in the Private Sector Act (The Privacy, 2000). Why Employers Monitor Employees i. Business Reasons Employers have the most obvious cause for monitoring their employees’ performance. Furthermore, technology has necessitated employers to step up their surveillance activities just to keep their business secrets safe. This can be done via the monitoring of the emails exchanged between employees by formulating policies on the use of emails in the organization. This is enough reason for employers with large volumes of confidential data stored electronically to keep track of the activities of their employees. Lastly, a number of employees claim that keeping track of the performance of an employee’s computer shows how much engaged the employee has been better than the use of second-hand reports, hence the monitoring process . ii. Risk/Liability Avoidance Some employee activities may lead to criminal cases which is why employers will want to monitor the activities of employees so as to avoid suffering this types of risks and/or liabilities (Lebihan, 2004). For instance, an employer may be required to account for acts carried out by senior and junior managers irrespective of the employer’s involvement or knowledge of the case. In addition, a number of Australian courts have complied with the fact that an email with a company’s logo on the letterhead is sufficient enough to know that the email was authorized by the employer, and thus has the right to monitor or track the communications so as to avoid any liability. Employer Use of the Collected Information i. Internal Use Most of the employee information collected by employers is usually used internally, unless otherwise, for instance, the case of the exemption. A typical example of how the information collected is put into productive use is where data about the performance of employee is used to better plan and allocate resources and identify areas of the employee force that needs more training, reinforcement and in some cases, reshuffling. All this are in the hunt of maximizing the productivity of the organization. The question we ask ourselves is whether all the information is used for the right purposes? It is advisable for employees from their perspective to be warned that arguably not all the information collected about them has a guarantee to be used in the rightful way as some may be intended for the wrong reasons. ii. External Use A variety of companies do not keep personal information within the organization, with some sharing employment and remuneration records. Recent surveillance technologies in Australia were earlier seen to be able to record employee keystrokes. This is an indicator that some employers will begin sharing some other valuable employee information. Furthermore, we all know that errors do occur, and thus, the accuracy of information is sometimes a concern when handling external firms. Here, a company may present another company with information that might accidentally be inaccurate or a report in which almost half of the background checks and credit reports are incorrect. This will obviously create tension between the relationships between the sharing firms and probably damage the reputation of the company in question. Similarly, consider such a mistake in an employee’s personal information, email messages and or keystrokes that have been collected without their knowledge and presented to another entity. The Privacy Implications of Technological Advances in Information Processing Organizations and workplaces are full of activities that involve handling of various types of information and/or data. Major information handling techniques in play at many workplaces include gathering, storing, retrieving and dissemination (Latimer, 2003). Ethical effects at work place that are associated with information are related to inaccessibility, accessibility and manipulation of the information (Lebihan, 2004). The issue of accessibility and/or inaccessibility of information are heavily linked to privacy violations. The increased use of technology in Australian workplaces makes it possibly easier for many people to access a variety of information, sometimes simultaneously. The implication is that it becomes flexible for a person to gain access to another person’s private information, something that is being tackled by the use of passwords. Manipulation of information technologically may refer to the integration, repackaging or altering of information using electronic applications (Woods, 2004). All these actions may interrupt with the employee expectations and in some cases; the employer may be affected too. In essence, technology use impacts the privacy of people at their workplaces and Lebihan (2004) believes that this can be manifested in a number of areas, which include but not limited to: i. Electronic monitoring of employees at workplace. As earlier discussed, monitoring of employees’ electronic activities at work places is related to personal information. The use of electronic eyes, as sometimes referred to, by employers at workplaces is usually justified by the fact that the organizations employ these technologies to improve their productivity. On the other hand, this can be viewed as a potential threat to employee privacy as employees always feel they are being watched which may result in some kind of fear. ii. E-mail interception and reading. Here, an individual’s privacy is being intruded as he/she can not read their own email messages, or rather their messages are intercepted and he/she cannot receive them. This violates the privacy of the employee’s communication activities. With the present technology at workplaces, it has been made easy to intercept electronic messages. Consequently, employers are justified to read these messages due to the facts that the infrastructure used in the process belongs to the organization and not the individual employee, and that the interception of the messages is for business reasons, in this case being to check whether the employee is using the infrastructure to do his/her job or for personal interests. iii. Data banking, or rather merging or integration of databases that may contain personal information of employees into one centralized database. The issue here is not with the merging of the databases but rather with the fact that the merging of the databases is done unawares i.e. the employee has no knowledge of the database centralization process, the employee has no knowledge of the reasons that led to the merging process, the intended destination of the information and the accuracy of the merged personal information. iv. In the modern business world, the use of hard cash in business transactions has greatly been reduced with the emergence of buying cards. These cards usually are installed a computer chip that contains the personal information of the card holder and records every item that the card holder purchases. Before this, no buyer record or rather personal information of the buyer was kept or could be retrieved, which meant there was some sense of privacy. Today, some of the information collected from the records is used by marketers of companies to target their markets. This is due to the fact that the marketers of these companies have access to private information and the buying habits of the card holder. v. Technology continues to be used in different dimensions. Some malicious web developers, hackers and crackers have become a major privacy threat in the general working environment. These groups of people break into someone’s computer systems to either leave a malicious message, bug, virus etc. or retrieve some private information from the computer system. This is a violation of an employee’s privacy as this is done over a network without the consent of the owner of the computer, thanks to the new infrastructure that supports numerous functionalities, including devices that support wireless networks. vi. Employees are provided with functionalities that enable them to protect their personal information with the use of strong authentication techniques, for instance, passwords. This helps protect the information of the employee from unwanted access by whichever party, a colleague or the employer. On the other hand, an employer can retrieve the information if need be since they do have the system administration rights which makes it easy to access protected information on a client computer from a host computer (Attorney-General, 2004). Lebihan (2004) argues that this is made even much harder with the newest technological advances which allows for someone to encode their digital information, making it virtually impossible to retrieve. This is becoming a threat or poses major threats in security issues as those who use this software to encode their information so as to free it from public or unwanted access might be criminals or might be protecting a criminal, criminal group, or criminal information. In general, technology employment when processing personal information has some effects on the individual. When an employee’s secret life is made public, he or she will no longer have the same sense of respect as before, may be due to loss of dignity. Conclusion and Recommendations Private employees have little legal protection against privacy suits as their employers have an upper hand in terms of legal protection they get. Many courts in Australia still treat the employer with high regards in employee-employer relationship (Attorney-General, 2004). This means that the employer has the authority to decide whether to monitor the activities of the employee. The idea behind this is that the employer’s equipment is in use and thus can regulate its use. It is unclear whether employers should or should not perform these surveillance activities at their own will. Advocate for Privacy Policies Privacy policies exist but little has been done to respect these policies (Attorney-General, 2004). In order to control the privacy intrusion saga, formulation of suitable policies that regulate the use of technology at workplaces is paramount. Some claim that notices are enough for employers to provide to employees before conducting a surveillance activity. This notice should be specific enough to include aspects such as what types of monitoring to be conducted, how frequent and for what reasons is it being conducted. This will ensure that employees ready themselves for the activity and are not caught unawares. Minimize Amount of Monitoring It is usually deemed as legal to carry out surveillance but it is my call that this be reduced by employers. Research shows that when employees are subjected to frequent monitoring, it may result in some of the employees being depressed, angry, creates tension among employees, and anxiety suggesting a link between monitoring and increased physical and psychological health issues of employees (Latimer, 2003). Bruno Frey, a 1992 Swiss economist once reported that some form of surveillance had negative effects on the morale of the employees instead of bringing in more efficiency and increased employee performance; hence, it only worsens the performance of some employees (Woods, 2004). Employee Self-Protection The balance of power in the employee-employer relationship leans towards the employer’s side. Despite this, Woods (2004) proposes a few measures that employees can take to protect themselves especially their computers and these include: i. Employer notice. Some employers are usually uncertain about their monitoring activities. This is usually the cause of most employee anxiety. Employers should provide their employees with prior notice detailing the exact surveillance activities to be undertaken, when and how they will be taken. In addition, the notice should inform the employees of the intended use of the personal information being collected. A major hindrance to this notice issuance is the fact that upon notification, not all employees will be willing to provide their personal information which may prove hard to collect crucial information in such cases, for instance, criminal information. In addition, employees can try holding talks with their employers to be granted more privacy rights, usually through unions. ii. Encryption. This technique can be used with email messaging where an email message is encrypted while on transit such that when one tries to intercept the message, he or she cannot decrypt it as they may lack both the encryption and decryption key. However, this might be questioned by some suspicious employers and it also does not offer any form of legal protection in cases where the encrypted email messages are discovered. References Attorney-General’s Department and Department of Employment and Workplace Relations (2004). Employee Records Privacy: discussion paper on information privacy and employee records, Retrieved Oct. 26, 2012 at . ICCPR (1966). The International Covenant on Civil and Political Rights 1966 (ICCPR), Article 17. Latimer, P. (2003). Australian Business Law 2003. CCH Australia Ltd, pp. 4-270. Lebihan, R. (2004). Workplace Surveillance Curbs Considered. Australian Financial Review. Office of the Federal Privacy Commission (2005). Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988. Retrieved Oct. 25, 2012 at . Paterson, M. (2002). Monitoring of Employee Emails and Other Electronic Communications. (21st Ed.). University of Tasmania Law Review 1. Pittard, M. (2003). The dispersing and transformed workplace : labour law and the effect of electronic work. Australian Journal of Labour Law, 69-93. Quirk, P., & Forder, J. (2003). Electronic Commerce and the Law. John Wiley & Sons Australia Ltd. Brisbane, pp. 344. Surveillance Devices Act 2004 (Cth). Telecommunications (Interception) Amendment (Stored Communications) Act 2004 (Cth). The Privacy Amendment (Private Sector) Act 2000 (Cth). Woods, J. (2004). The privacy free zone. Sydney Morning Herald. Read More