"Snooping Bosses"--TIME Magazine, week of Sept.11, 2006.

  EMPLOYER SPYING. RE:  TIME MAGAZINE ARTICLE, "SNOOPING BOSSES" by Kristina Dell and Lisa Takeuchi Cullen at 62-64 (Sept.11 2006 issue).   

Most of my friends get quite worked up about the Bush Administration's domestic spying.  I'm much more worked up to find out from this week's Time Magazine---which, come on, you can't get more mainstream media than Time, yeah?---about the scope of employer scrutiny of employees both on the job and off.

I mean, it's one thing for the government to get all up in your private business in the interests, allegedly of "national security."  At least they have what some citizens consider a compelling reason.  I'm not comfortable with the idea, mind you, because I am all about individual privacy and the right of citizens to be secure in their homes, but I have always been secretly certain that the government keeps tabs on people it wants to keep tabs on and that there's not a lot private citizens or even the Congress can do to stop them so long as they're able to conceal the fact from citizens.  I don't mean I think it's okay; I just have always thought that it's how things work. 

At least the constitution puts some limits on the government's ability to use any information it gains that isn't germane to its concerns.  (Or so we trust). 

But a boss who listens in without notice to employees on their phones and reads their emails?  That crosses the line.  That's wrong, an invasion of privacy, and unconscionable.

I don't dispute that bosses have the right to monitor phone usage and internet usage and anything else that might distract an employee during working hours or that represents an illegal or prohibited use of company resources, but they shouldn't have the right to monitor the employee.

I can't imagine that it is necessary for a boss to read employee emails in order to know that the employee is spending too much time emailng and not enough time doing other things; but if there is some sort of red flag, I'd reluctantly concede that the employer might have the right to do a random check.

But routinely to go through employee emails, even in the absence of "red flags" indicating prohibited or excessive activity?  To use the power of technology to take official notice of office gossip (including jokes about the CEO's wife or the CEO?)  That, my friends, crosses the lines.  As does listening in on a person's private conversation the minute you realize it's private.

Again, I don't dispute that they have the right to monitor phone use, internet use, and anything else.  If they notice that someone is visiting porn sites, they have every right to object.  But they don't have to read emails or listen in to phone conversations to find that out.

If they are going to engage in such practices, they should put the employee on notice and the notice ought to be conspicuously posted and explain in clear and unambiguous terms exactly what surveillance procedures the company plans to use.  The only legitimate purpose of such monitoring is---or ought to be---ensuring that employees aren't using work time to surf the net, post on TV message boards, or engage in blogging.  Secretly monitoring employees so that you know who is dissatisfied or getting divorced or considering a move to another company is wrong.  It's exactly the same as secretly steaming open someone's  mail or secretly eavesdropping on a private call; and it's wrong to do it just because you can. 

According to the article, "the courts are mostly giving the O.K. to corporate spying. "I haven't seen one case where an employee has won on a right-of-privacy claim," says Anthony Oncidi, head of the labor and employment department at law firm Proskauer Rose.""  The next sentence in the paragraph implies that to "ward off privacy claims,"  Companies must have "informed staff that they're being monitored, even if in a rarely read handbook," but goes on to say that only two states (Connecticut and Delaware) require bosses to do this.   Id. at 64. Shocking. 

This is something that ought to get voters up in arms and that should make officials looking for issues to take notice.  The constitution has built into it protections against the government intruding too far into private life (though they have been interpreted with more and less flexibility over the years); but private companies aren't so restricted, and the use they make of information they gain through such techniques isn't restricted.   And all this occurs in contexts in which the individual has little if any power.

On page 64, Time provides a list of tips for staying "out of trouble."  Some of them make a lot of sense and are worth reading carefully; others are---or ought to be self-evident---but clearly are not.  Consider hint number 3, "Think twice before you hit "send.""  I am frequently blown away by the thoughts that some people are willing to commit to email----not to mention the emails that my friends send to each other at their work addresses.   It's like writing your inmost thoughts on a postcard and sticking it in the company's filing cabinets.

But hint number 4 ("Proofread Profiles") contains some advice that ought to infuriate every right-thinking American---not the advice itself, but the fact that it's being soberly suggested as something a person ought to have to consider.  "Blog postings should avoid hot-button topics like politics and religion," it says. 

In other words, to keep your job you should keep your thoughts to yourself.  And I'm sure this is true even for non-bloggers:  I've known people to be fired from their jobs for some thinly veiled reason when the (probable) true reason was that the employer didn't like the fact that they were working ON THEIR OWN TIME for this or that candidate. 

I love my job and have a high opinion of the people who employ me; but that high opinion would instantly cease if I were told that my job came at the price of my ability to engage with the world---discreetly of course--- either on the internet or by participating in some sort of political action. 

Can we be said to be a free people if the jobs on which we depend in order to survive can be legitimately taken away because we express an opinion that differs from the boss's opinion or the opinion of a client?   And is that the sort of world we want to live in:  one where your means of subsistence depends on your keeping quiet?

Okay, that's a trick question.  The answer isn't actually an unqualified and resounding  "NO!"  I think employers do have an interest in ensuring that their employees don't engage in activities that reflect adversely on the company or on the company's interest in hiring the employee. 

I'm not talking about the employee who blogs about company gossip, trade secrets, or the employee's own dissatisfaction with the job. Clearly, such conduct crosses the line.  I certainly believe that an employer is entitled to expect that the employee will speak respectfully of him, her, or it in public, and you can't get more public than the internet.

I I can't really say that the employees' choices outside work aren't ever the employer's business. 

But I don't think that employers have the right to punish employees who wish to engage in public dialogue on the internet or in the local letters to the editor based on the nature of the employees' opinions, which is what this article seems to be saying.  In other words, if my employee publishes a political blog that espouses opinions on the far right end of the political spectrum, that is none of my business as long as it doesn't actually interfere with business or business relations. 

On the other hand, if my employee publishes content on the web that reflects poorly on his or her judgment or character?  That sort of public behavior is probably fair game.  That is to say, I can't fault an employer who objects to an employee running a porn site or a site dealing with strange fetishes or weird obsessions, particularly if he or she doesn't have the basic common sense to use a pseudonym.  How stupid do you have to be to publicly release information about yourself in the Too Much Information Age that shows that in private you are a discretion-impaired idiot or a drunken reprobate?  And who wants to employ someone who is that stupid?

And what if the employee's legitimate political blog somehow comes to the attention of the employer's client and the client refuses to do business with the company anymore unless the company shows him or her the door?   I suppose that in a case of that sort, the employees' activities become the employers' business, but I don't think that an employer should ever cave in to pressure of that sort. 

The bottom line is that I don't want to live in a world in which people are afraid to speak or to interact publicly---at least in a reasonably discreet, adult fashion---because they might lose their livelihood.  And as with every other REAL concern, the lines aren't clearcut or the answers black or white.  Opinions will differ about where they should be drawn.

But this I do feel sure of---or as sure as I ever am about anything---the law should certainly limit the  use of technology by one person (including a corporate one) to invade the privacy of another without notice to the person.  The notice should have to be clear, conspicuous, and comprehensive.   And ideally---according to me---it should require that any such invasion be limited to the least invasive means available to accomplish a legitimate business purpose. 

The first limitation ought to be achievable through legislation---as the article says, the citizens of two states have already achieved it. It would simply require that employers give notice to employees of such monitoring.  The second, well maybe---it goes really to the type of notice required.

As for the third, I'm not holding my breath. I think it will take the combined wrath of the generations that have grown up with the internet to achieve it, and maybe they'll become too used to the thought of being monitored to care.  But maybe what Time calls "the Facebook generation" will lead the way.