Surveillance of workers at home… a new (actually old) privacy issue that has been a kick along

October 17, 2020 |

The cynical saying “don’t waste a good crisis” has found plenty of examples of unimpeded and inadequately scrutinised change by governments and businesses.  Here there has been  a solid level of support in governments doing the right thing.  And generally less fractious argument between workers and employers.  The feeling is, we are all in this right so the presumption is that commonweal trumps all, including individual rights.  A dangerous mindset and one that leads to abuse which can be difficult to undo when the crisis passes as the technology is embeded into the work place structure with little to no push back.

The phenomana of employee monitoring is not a unique by product of the COVID 19 lockdown and remote working.  It has been a growing trend for some time.  In 2018 Garnter produced a report, The Future of Employee Monitoring, where it found that in 2018 50% of companies surveyed used some form of non traditional monitoring techniques.  The figure was 30% in 2015.  Gartner predicted that number to be 80% this year. That prediction was done without factoring in the change in workplace arrangements with COVID 19.  There has been a discernible effort by employers to use the technology available to monitor their workers output while working remotely coupled.  A growing list of increasingly sophisticated surveillance tools has lead to an ineffectively regulated and comprehensive means to surveil employees in their home.  This is well described in Employee surveillance tools emerge as a serious side effect of Covid-19 which provides:

Time Doctor’s software takes a photo of employees’ computer monitor or smartphone at short regular intervals and sends it to the employer. It can even film the employee using the computer’s camera. Hubstaff measures the movement of the mouse and the speed of keyboard strokes to endure high levels of productivity. ActivTrak searches for suspicious activities by employees and examines them in context to decipher “true intentions,” and at InterGaurd they can install tracking systems to follow a worker’s every pageview or app and classify them according to their degree of efficiency to the employer’s assignment.

Employers can even share some of the data with third parties. “Build client trust by showing them the progress on their projects with screenshots and reports about the tasks that are being worked on,” the Time Doctor website boasts.

These dystopian products have in recent months become hot commodities for managers who had to transition to remote work. In late March Google searches for “worker monitoring” spiked to an all-time high and tracking software companies reported sharp increases of up to three times the number of clients and revenue.

“We have seen a massive increase in the number of people needing our platform,” Hubstaff CEO Dave Nevogt said in an interview with NPR in April. Adding that he feels “like these changes may be here for good.” ActivTrak CEO Rita Selvaggi told the Wall Street Journal that the number of requests from new clients was insane, alongside existing clients package expansion requests.

Such services are finding their way to many scared and confused business owners who fear losing control of their locked-down workforce. It’s not just worry that is fueling the managers. Some would say that the temptation to monitor, track and manage their workers with a push of the button from their living room is the main reason for the software’s success.

Among employees, the new trend is causing distress. Most complaints about working from home have to do with exhaustion from digital encounters, many fear that under the auspices of the pandemic a new norm of invasive and incessant surveillance is emerging—without any real discussion about its limits. If the debate ever takes place it is safe to assume that any attempt to roll back the practice will be like trying to insert toothpaste back into its tube.

“Technology is neither good nor bad, but it isn’t neutral either,” Ivan , a departmental lecturer in international political economy at the University of Oxford told Calcalist. “It all depends on the context it is embedded in. If the context is that most people need to find a job in order to survive, and when the cost of not working is constantly growing, what this technology produces is, by necessity, an increase in the relative power of employers over their workers. And this outweighs any possible benefit derived from it.”

Manokha has emerged in recent years as one of the leading voices against worker tracking technology.

“Employers these days can track and record all employee performance data and record it. The supervisor is always watching. Employees, aware of constantly being monitored and rated, strive to meet goals, perform better than others, and always record good performance. However, this has crucial negative consequences, such as high stress and anxiety levels, which often lead to burnout and employees adopting unsafe practices that could endanger them and others, such as truck operators who continue to drive even when they need to sleep.”

All of the tracking software options currently on the market offer a list of tools to track employees, both digitally and physically. The data is collected and analyzed by algorithms that were programmed to identify performance problems. Some of the tools allow employers to decide whether to grant workers access to specific websites or platforms, measure their time spent on websites and applications and monitor how long they spend on their computer, on the phone, in meetings, by the desk, outside the office or in shared spaces – all of it dissectable according to the worker’s identity, their roles, their team allocation and by days, months and years.

Some of the programs can send automated attendance alerts if they note the employee hasn’t been on the computer for a preset time. Others can alert managers if a worker installed a USB drive into the computer or browsed to a social network to watch cat videos. All of it is recorded, nothing flies under the radar, the findings are stored digitally, searchable and presentable as automated charts, graphs and screen captures.

How much of it is legal? According to the legal counsel for the Israeli digital rights movement Jonathan Klinger, “the rule is to differentiate between various types of use cases. The first is what’s known as a ‘private box,’ when the employee uses a personal phone or computer for work purposes. In that case, the employer has no right to request that a tracking program be installed, or even condition the connection to a workplace network on the installation of such a program. However, if the employer provided a laptop or smartphone to the worker it must meet two rules in order to be able to install any spyware on the device: the employee must not use the device for private use and the employee must give his or her consent to any specific viewing of the materials on it. Meaning, that even if the data is collected the company still requires the employee’s permission to rummage through it. Monitoring is far easier when dealing with shared work computers. If it is labeled as being monitored, employers can implement full tracking policies.

The rules in Israel are lenient compared to those in Europe, for example, where many states prohibit the routine use of tracking tools and permit it only under very limited conditions, such as suspicions regarding a particular worker’s output. Some countries, like Italy and Germany require that companies consult with unions or other organizations before installing monitoring tools.

“Nowadays, Management’’s ability to track the entire workforce and receive detailed information about each individual worker and the team as a whole, is nearly absolute,” Manokha said. “The supervisor is always present, even when they are absent from the office. This is unprecedented in human history.”

The relentless monitoring of people in the digital age produces an endless loop that causes employers to increasingly examine employee efficiency through metrics and data. The problem is that the data can’t really capture and describe the unique contribution of each and every employee. What may seem to an employer like a pointless session of browsing the web may actually be them searching for creative ideas from unexpected sources.

Surveillance creates another endless loop: the more the employer wants to know about the employee, the more the employee’s need for independence and freedom from employers’ metrics pushes them to try to be less and less transparent. And the more employees try to hide, the more employers want to increase surveillance. Michael Entebbe, a professor of organizational behavior at the University of Boston, calls the phenomenon “self-fulfilling monitoring.”

And if all that weren’t enough, studies suggest that monitoring may actually harm exactly what it was supposed to improve: productivity. In 2017, the U.S. Congress’s Office of Technology Assessment linked electronic monitoring of the amount or speed of work to stress-related illnesses. The pressure to meet metrics while an all-seeing employer hovers above them, pushes employees to work longer hours and exert greater effort – but this does not always result in greater productivity.

Studies have found that surveillance often causes employees to change their behavior to match the software’s expectations, eroding their ability to function as individuals. Employees have reported feeling loss of control, which negatively impacts their feeling of security and their quality of work. A Data & Society research paper published in 2019 found that gathering massive amounts of data makes it easier for employers to carry out pay cuts, especially to contractors and freelancers, when calculating their wage expenses.

There is a clear trend towards adoption of such monitoring tools by more and more industries, with nearly no pushback from employees, Manokha asserts. “Even when it comes to invasive surveillance techniques like micro-chipping—inserting a grain of rice-sized chip into employees’ skin that enables them to operate printers, open doors and, of course, monitor all their actions—not only is there no resistance, the employees gladly adopt it.”

It’s no exaggeration. On August 1st, 2017, the employees of Three Square Market were invited to a company event at its Wisconsin headquarters. In between mingling, employees of the autonomous machine company were implanted with a tiny chip under their fingernail that allowed them to open their office doors, make purchases from vending machines and access their computers with non need for a password. Currently 72 of the company’s 90 employees have a chip embedded under their skin that tracks their every move. In return, they received a t-shirt with the words “I got Chipped” written on it. Once, paroled prisoners had to walk around with an electronic bracelet, today workers relinquish their privacy for a t-shirt.

As opposed to the lively debate taking place in academia, for businesses it’s “cut and dry.” Not all employees can be trusted and those who do their jobs loyally have no cause for concern. If someone resists being monitored, what does that say about them? The Covid-19 outbreak and transition to work from home only exacerbated the power discrepancy between employers and employees, especially in light of the soaring global unemployment figures, which leave workers with fewer and fewer bargaining chips.

The Harvard Business Review wrote a thoughtful piece in May titled How to Monitor Your Employees — While Respecting Their Privacy which

 

Today the ABC in Being monitored by your boss while working from home — necessary trade-off or ‘stupid’ surveillance? has done a more generic and broad brush piece on overall workeplace surveillance which does highlights the insidious practice of employers being able to use technology to monitor workers activities from home, be it through screen shots, tracking software or key strokes or pages the workers access on the net.   The Electronic Frontiers Foundation covered a similar theme in a more comprehensive manner in Workplace Surveillance in Times of Corona in September. 

The ABC article provides:

How’s your boss keeping tabs on your work?

Before the pandemic they might have popped their head over the partition or caught up over coffee.

But with many people working from home, some companies are using time tracking software or surveillance technology to check in on what workers are doing.

How does it work?

Most of the software on the market can take screenshots of what’s on a worker’s computer (sometimes in real-time). Some also offer keystroke logging (what you type), and GPS tracking.

Elizabeth Lyons, who studies technology and management at the University of California San Diego, says it’s tracking pretty much anything an employee’s doing in work hours.

“The things employers are really looking for is what websites are employees on, are these productive or unproductive websites, what apps are they using, how much time are they spending on their different tasks,” Dr Lyons tells ABC RN’s This Working Life.

“Increasingly I’ve been seeing software that is using machine learning techniques to try to predict what types of activities are associated with higher productivity, what time of day employees are more productive, what kind of breaks might help employees become more productive.”

Jathan Sadowski, from Monash University’s Emerging Technologies Research Lab, says tracking workers and their efficiency isn’t new.

“But what we see right now is the technologies and the abilities are now available to really supercharge this kind of surveillance and discipline and monitoring to increasingly higher levels,” Dr Sadowski says.

‘It doesn’t capture the full picture’

Candice works as a digital marketer for a podcast supporting students undertaking English language tests.

The team’s spread out over different countries and the company uses tracking software.

But she says she doesn’t have a problem with it.

“I think you have to put a lot of trust in someone that is working remotely because [my boss] has no idea of what I’m doing all day long,” Candice says.

“It also keeps me on track … I can see exactly how much time I’ve spent doing work, because it’s so easy to decide to wake up at 10:00 in the morning and then by 2:00 in the afternoon you feel tired and you think, ‘Oh well, I’ve done a lot today’.”

Her boss, Ben Worthington, says the technology isn’t perfect.

“If one of my team members pulls away from the laptop and just starts jotting ideas down or whatever, then the software obviously doesn’t capture that,” he says.

“So it doesn’t capture the full picture … but it gives you a good guideline.”

He says maintaining a good relationship with his team — through things like weekly catch up meetings — can almost replace the tech.

“[The software’s] definitely useful but it’s not the single tool for working remotely, there is quite a lot of other components.”

‘Machinelike, without human flaws’

It’s not just desk-bound workers being tracked.

When she’s not studying Emma works in the warehouse of a clothing company.

Everyone working in the warehouse is tracked. If they’re falling behind a supervisor will review their stats with them.

“In order to get shifts we have to keep a certain average of productivity,” Emma says.

She says she liked trying to improve on her performance and that the company would ask for ideas on how to become more efficient.

Emma is shorter so more stepladders were added.

Her bosses realised that people listening to music were faster because they didn’t talk. So a new rule was added — everyone has to have headphones on, or not talk.

“It was all kind of: how can we make this the most machinelike, without human flaws,” Emma says.

Lauren Kate Kelly from the United Workers Union says people need to look past the technology and see what surveillance is doing to the power imbalance between companies and their staff.

“It’s corrosive. Particularly in the context of insecure forms of work, which is where it really takes root.”

She says a person run off their feet and being tracked by a scanner in a warehouse probably doesn’t have the job security to speak up and raise any issues.

“The most egregious forms of workplace surveillance and discipline of workers takes place in a context where people don’t have a lot of power, where workers don’t have basic rights and conditions that are associated with having a permanent or a secure job,” she says.

“Some of this new tech, it’s seen as being very shiny and a silver bullet that can fix all workplace problems. Fundamentally, firms they need to think about what creates value, and skilled workers and happy workers create value.”

Some fear that while this tracking technology has quickly advanced, the law has been left behind.

There’s no general right to privacy in Australia. Instead there’s a complicated web of federal, state and territory laws.

Patrick Turner from Maurice Blackburn Lawyers says those laws aren’t consistent, and need to change.

“With people working from home due to COVID-19, certainly anecdotally there appears to be a great number of employers who are increasingly looking to use technology to scrutinise employees and to deploy surveillance which is reaching into the home,” he says.

“There is a whole range of information that employers may be gathering on employees in an area of their life where otherwise their employer would not have any scrutiny.

“So we need to be really careful about making sure that people are protected in the home, but also in other facets of their life where their personal information is being gathered.”

Connections, trust & motivation

Paul Zac studies neuroeconomics — looking at how people think and how that affects business and economics.

He says the idea that this technology is a trade-off for people who get to work from home is “stupid”.

“You’re not hiring the right people, if you’ve got to do that kind of surveillance,” Dr Zac says.

He says more important is having social and emotional check-ins with staff through regular chats and getting everyone onboard as a team.

“It’s not surveillance. It’s really asking people if they’ll put their passion, their energy into moving the organisation’s goals forward. And to do that, you’ve got to be part of a trusted team.”

Tyler Sellhorn works for the tracking program Hubstaff, which offers GPS tracking, monitors websites employees visit, and can capture screenshots of their computers every few minutes.

He says it’s not surveillance.

“If you want to purchase a surveillance product, that’s available to you, and Hubstaff isn’t that,” he says.

“The world is going to remote, so how can we do that in a way that does have an opportunity for people to ‘move the sliders of trust’ towards one another.”

Mr Sellhorn says the software enables both the employers and employees to have the “transparency, access and control” that’s needed for them to work without supervision.

“The thing that I would encourage you to be thinking about is that it’s going to amplify whatever kind of management you already have inside of your company.”

The right balance

Dr Lyons says with any worker monitoring, bosses need to be careful to strike the right balance.

A study she conducted found people doing data collection work out of the office were more productive when they were made aware they were being monitored, compared to their colleagues who weren’t told they were being tracked.

“We think, based on survey measures, that this was because it increased worker satisfaction.”

She believes the workers who weren’t told they were being tracked may have felt like they were less important to their managers.

“Where you’re not having regular interaction with your manager, or even with your colleagues, some signal that your performance is integrated into the organisation seems important.”

But she warns in other studies workers have interpreted too much monitoring as their boss not trusting them, while in others employees felt less motivated.

“They said, ‘if the manager is going to watch everything I do, then I’m not going to do anything above and beyond what they expect of me’,” she says.

“Striking this balance seems really important and actually quite hard.”

In Victoria there are provisions designed to protect workplace privacy.  They are found in Part 2A of the Surveillance Devices Act 1999.  It defines, at section 9A, employer and worker quite broadly and workplace as any place where workers perform work.  But the protections are quite analog.  It regulates and prohibits, subject to exceptions, listening or optical devices.  There are also controls on tracking devices, at section 8.  The Federal Telecommunications (Interception and Access) Act 1979 prohibits to listen to telephone calls and intercepting telephone calls. 

The problem with the laws as drafted are that they do not necessarily cover much of the new surveillance technology.  Does a screen shot constitute a listening or optical device?  Hard to see how?  Does key stroke monitoring constituting any form of optical device? 

The laws need a major review.  And Australia is always a laggard in that regard.

 

 

 

 

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