Concern building over workplace surveillance

By ALAN PERROTT

Your tools may be something out of Arthur C. Clarke's 2001, but you could be forgiven for thinking your workplace is regressing to George Orwell's 1984.

The rapid spread and sophistication of surveillance, covert and overt, means almost nothing that happens during our working day needs be left to another's imagination.

A worker's movements can be tracked by video camera, smart ID card, swipe card and fingerprint-activated doorways.

Every keystroke made on a computer terminal can be monitored, retrieved and read, all telephone calls can be logged and voice messages recorded.

Drug tests can affect how people live their lives away from work, and the past can come back to haunt us through checks on criminal records, previous employers and ACC records.

Software can assess psychological states, IQ, interests and honesty, giving an employer a peek inside our heads.

Alarm bells are starting to ring worldwide about the way this technology is used.

The probability of increasing e-mail snooping within New Zealand has raised the hackles of the unions.

Aside from personal privacy issues, the Council of Trade Unions is worried that employers will monitor confidential communications between unions and members.

CTU secretary Paul Goulter says e-mail use is as widespread as telephones and is often the easiest way to contact a large number of people quickly.

"We must maintain the unions' right of entry into the workplace. There must be ways to keep such contact free of snooping in parallel with maintaining an employer's right to preserve a safe workplace.

"As to those suggesting otherwise, well, it's get-a-life stuff. We know that e-mail abuse exists and it has to stop, but for employers to say it'll be stopped by them snooping on everyone's e-mail, how smart is that?

"Once they start it would be very difficult to stop and they will soon want to look at everything."

The Privacy Foundation, a Denver-based international online watchdog, put workplace surveillance at the head of its top 10 privacy issues last year - above patient privacy and Carnivore, the FBI's new all-powerful national e-mail tapper.

A study by the American Management Association shows the number of US firms monitoring their employees leaped from 45 per cent in 1998 to 74 per cent in 1999. Those watching e-mails, either continually or in spot-checks, rose from 27 to 38 per cent.

E-mail snooping can be done using any of more than 30 systems on the market, including eSniff and LittleBrother.

The International Data Corporation estimates that companies spent $62 million on such technology worldwide in 1999, and that this could rise to $560 million by 2005.

Some systems scan e-mails for key words or phrases. Others such as WinWhatWhere can record every keystroke and deletion, even if the message is not sent.

Privacy Foundation head Stephen Keating says: "The rise of the internet has sent a flood tide of privacy concerns through business and society, and the waves are breaking bigtime in the workplace."

The net has so many holes that US President George W. Bush has said he will send no more e-mails for fear of interception.

So will this worker vs employer paranoia hit our shores?

Sorry, but your computer may already have turned against you, judging by comments from the Employers and Manufacturers Association. Consultant Peter Tritt sets out its fundamental view on internet use and private e-mailing at work.

"It's not there for private use and anyone who thinks it is is talking nonsense. You can find out about anything that happens on someone's computer at any time so privacy can't exist."

The association lays much of the blame for this stand and other potential encroachments into personal privacy on the increasing responsibilities laid on employers.

"If someone downloads pornography from the internet, sends an offensive e-mail or is under the influence and damages themselves or someone else, it's the employer who is liable," says Mr Tritt.

"Employers don't take these measures just to spy on people - it's purely to protect themselves."

The only protection for workers seems to be the legal requirement for employers to set out a monitoring policy.

Such a policy should not only warn employees they are being watched, but also spell out when they are being watched and what it is they are not allowed to do.

But even this "Clayton's" safeguard can fall down in the real world.

Auckland lawyer Chris Patterson, who specialises in employment and information technology law, says his surveys suggest only about 10 per cent of companies have such a policy for internet use.

"[Employers] need to monitor. If you don't you are really asking for trouble because it is the only way you can protect yourself ...

"It's as rare to find a company without an e-mail address as a fax machine, so the more invasive the internet becomes, the more access there is for people who will use it inappropriately."

Mr Patterson says companies can face defamation charges over indiscreet or offensive e-mails sent by staff even if the employer had no knowledge of them.

A nasty e-mail can move through several servers before reaching its destination and each of those stages can legally be considered a separate publication.

Then when it arrives at the desired address, the sender loses all control and, as with jokes and computer viruses, the damage can ripple far and wide.

Such an incident within the New York Times Company in 1999 led to the sacking of 23 employees and an unspecified number of warnings at an office in Virginia.

About 80 staff of Royal & SunAlliance in Britain were suspended after a member of the public complained of pornographic images being sent by e-mail. An inquiry led to 11 dismissals and seven resignations.

Mr Patterson has been involved in five internet defamation cases within the last six months, including a case taken against members of a small inhouse chatroom at one company that was used to spread potentially threatening messages.

To limit the danger to employers, he suggests they consider asking new employees who will have access to the internet to sign privacy waivers.

"If they don't agree they will be setting warning bells off. What are they telling you?"

Such waivers could circumvent clashes with the Privacy Act and the Crimes Amendment Bill (No 6) - now before the law and order select committee - which could make it unlawful to intercept e-mails.

Mr Goulter would like to see a charter of rights to regulate e-mail communication.

Mr Patterson also wants an overhaul of how internet use is regulated.

"We have courts using ageing cases to rule on new situations and judges who are technophobes.

"Until the law sorts itself out, I can only repeat what I have always said: Don't e-mail anything you aren't prepared to say out loud."