Untying the 'Invasion of Privacy' Knot
Is monitoring employees’ computers good management?
July 22, 2010
Much of the time business ethics is straightforward or, as the philosophers G.E. Moore and H.A. Prichard and R. Audi argue, a matter of intuition. But there are times when two sound moral principles collide and a considerable degree of practical deliberation is required to untie the moral knot. This may be so even if we take profit maximization to be our chief goal. If our goal is just and fair treatment of the public and employees as well as stock price maximization, in other words corporate social responsibility, issues get knottier.
One of the knottier moral issues is workplace privacy. On the one hand most Americans agree that privacy is an important value. Most of us blanch at trespassing and voyeurism. At the same time, though, human resource management may require limitation of sexual harassment, theft or violence that requires controls that intrude on privacy. In 1994, Ronet Bachman (PDF) of the U.S. Department of Justice noted that each year one million individuals are victims of workplace violence, 15 percent of the total violence experienced by U.S. residents. According to a consulting firm, MKS&H (PDF), the cost of workplace fraud exceeds $400 billion, with a median loss of $120,000. Common forms of fraud include creation of fictitious vendors, altering purchasing records and creating ghost employees. Computer files may provide evidence.
The Computer Security Institute conducted its 14th annual survey of computer crime in 2009 and found increases in malware infection, password sniffing and financial fraud, with average losses due to security incidents down from $289,000 in 2008 to $234,244. Also, 25 percent of respondents stated that over 60 percent of their computer-related financial losses were due to non-malicious actions by insiders. Respondents stated that better log and security management would improve these results.
According to Frederick S. Lane, III in his book Naked Employee (Frederick S. Lane, III, The Naked Employee. New York: American Management Association, 2003, p. 13), 70 percent to 80 percent of computer crime is committed by employees against their employers. Also, employees may simply waste time playing computer games, costing over $50 billion per year according to Lane. (Lane, p. 15) quotes Steve Watkins of Summit National Bank in Atlanta, who advocates use of Antigame Plus, an anti-gaming software program. According to its manufacturer, Apreo (PDF), AntiGame Plus “improves IT efficiency by automating the search and removal process, eliminating the need to scan desktops manually” but “to be fully protected against unauthorized game-playing, an organization must combine other solutions like Internet access monitors, file management utilities and operating system features with AntiGame Plus.”
Another example of monitoring software is GFI’s Webmonitor, which “monitors web browsing and file downloads, provides network protection from viruses and improves productivity.”
Lane (p. 143) writes that Web surveillance can take four forms:
Packet, Ethernet or wireless sniffers intercept and log message packets that go over the Web or a digital network. The sniffer decodes the packet and if specified offensive information is found, the program alerts management. Sniffers can also be used to detect network intrusion and have other programming-related uses. Filters, such as Websense, intercept Web page requests and compare them to a compiled list of millions of Websites. Management can choose which categories of sites to block. Websense Reporter can track the amount of time employees spend on the Web. However, Lane points out (p. 146), firms that retain information about employees’ Web habits may open themselves to sexual harassment suits. What you know can be used against you.
What Can You Monitor Legally?
The Electronic Communications Privacy Act of 1986 makes it illegal for employers to intercept communication but not to inspect files of past e-mail messages. System providers can access e-mail communications and most experts believe that employers are system providers with respect to their internal e-mail systems. The general rule is that eavesdropping is prohibited unless one party to the conversation gives his or her consent. Even with respect to telephone calls, employers may monitor employees’ calls in the “ordinary course of business” or if the employee has given consent (Lane, p. 251). Employers are supposed to stop monitoring phone calls that are personal.
According to a 2006 survey reported by the Society for Human Resource Management, 58 percent of employers monitor Internet use; 48 percent monitor computer use; 45 percent monitor e-mail use; 21 percent monitor employee telephone use and five percent read employee e-mails.
But strict monitoring may backfire. SHRM finds that in the United Kingdom (U.K.) nearly 80 percent of Generation Y (Gen-Y) employees say that they log on to social networking sites, 63 percent download music and 58 percent watch YouTube videos during office hours. This has resulted in excessive usage of firms’ bandwidth. The survey also finds that 39 percent of Gen-Y employees in the U.K. would quit if told that they were not allowed to use the Internet at work. However, nearly half agreed that it would be reasonable to restrict personal Internet use to lunch or after-work hours. One problem with this solution, though, is that employers can still be held responsible for sexual harassment and other inappropriate use even if it is during off hours.
Even worse, some academics now claim that Internet use can be an addiction or a disease. SHRM reports a survey that found that 13.7 percent of respondents found it hard to stay away from the Internet. Some psychologists claim that video gaming in particular can become an addiction. Writing in the International Journal of Mental Health and Addiction, Li Huanhuan, Jiaqi Wang and Li Wang of Sun Yat-Sen University in Guangzhou, China find that problematic internet use during college can become a significant public health concern (Li Huanhuan, Jiaqui Wang and Li Wang, “A Survey on Generalized Problematic Internet Use in Chinese College Students and Its Relationship to Stressful Life Events and Coping Style.” International Journal of Mental Health and addiction, 7:2, 2009.). However, writing in the same journal, Richard T. A. Wood (Richard T.A. Wood, Problems with the Concept of Video Game Addiction: Some Case Study Examples.” International Journal of Mental Health and Addiction 6:2, 2008.) argues that concerns about video game addiction “have been based less on scientific fact and more upon media hysteria.”
The Law and You
There is little chance that in the near future gaming or Internet use will be defined under ADA as an impairment of a major life activity. Nevertheless, SHRM finds that HR managers and employees disagree about the extent of monitoring that ought to be done. Sixty-two percent of HR professionals believe that organizations have the right to monitor employees’ computer usage while 32 percent of employees feel that they do.
Advocates of privacy rights generalize from the 1965 Supreme Court case of Griswold v. Connecticut. In the opinion, written by Justice William O. Douglas, the US Supreme Court held that the right to privacy is found in the “penumbras” of the constitution. Although there is no constitutional penumbra creating a right to workplace computer privacy, many employees sense that the penumbras of their every day rights ought to extend to such protection. But there is still a presumptive right to contract in the absence of government regulation. Employers have the right to manage their firms and employees have the right to work elsewhere if they do not accept a given degree of monitoring.
Effect of Monitoring on Your Employees
But there are additional considerations. Workplace monitoring can be de-motivating. One employee says that her supervisor used television cameras to watch employees in a store from her home. The cameras were directed at the employees, not at the customers. The employee group found this surveillance to be disheartening and it resulted in turnover. Moreover, it may be that surveillance will result in a degree of distance between employees and the firm that will require additional remuneration to compensate.
There is no simple solution to the moral question of computer monitoring. It is probably advisable for employers to recognize that there is first of all a moral question and second of all to inform employees of the presence of monitoring programs and other surveillance paraphernalia. But the extent of their use depends on the kind of workplace, the human resource strategy that firms wish to build.
Now, back to World of Warcraft.
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Mitchell Langbert, PhD, is an Associate Professor at Brooklyn College. Widely published on the subject of human resource management, Langbert has consulted and served as an expert witness.