Big Brother Is Legally Watching

 The paper is a brief insight into electronic surveillance in the workplace. It focuses on what video surveillance is; and what methods are used, such as monitoring phone usage, video surveillance, monitoring email, internet usage, GPS surveillance of company vehicles and cell phones; and why these methods are adopted within the workplace. It also focuses on the legal risk of electronic surveillance with the concerns of invasion of privacy and its effect on the of workplace protocol and guidelines.Big Brother Is Legally Watching: An insight in to Workplace SurveillanceThe development of technology has completely changed the manner in which business is conducted. Employers are increasingly focusing on what employees are doing at the office besides working.

Through the use of electronic surveillance, businesses are making greater use of electronic employee monitoring methods to enhance productivity and deter theft. Some surveillance methods that are used consist of monitoring phone usage, video surveillance, monitoring email, internet usage, GPS surveillance of company vehicles and cell phones. Even smart card technology employed to control building access is utilized by more than half of the businesses today. Although electronic surveillance is becoming a very common part of the workplace, many legal risks are associated with its usage for both employees and employers.What electronic surveillance is, how it is use, and the risk that is associated with its use will be addressed within this paper. Electronic surveillance is defined as the process of observing or listening to persons, places, or activities, usually in a secretive or unobtrusive manner, with the aid of electronic devices such as cameras, microphones, tape recorders, or wire taps (Kidwell & Sprague, 2009).

Many businesses use electronic surveillance to maintain the security of their buildings and grounds, to obtain information about costumers or to help increase the output of work during business hours. Electronic monitoring can serve several purposes. It can increase the amount of work actually being done during work hours, enhance the security for persons and property, and detect and prevent criminal, wrongful, or impermissible activity. Various methods of electronic observation has been employed by business competitors, convenience stores, shopping centers, apartment buildings, parking facilities, hospitals, banks, and employers.Three types of the most common electronic surveillance are wire tapping, bugging, and videotaping.

Electronic monitoring is on the rise with the ability to view emails, monitoring of internet usage, GPS surveillance of company vehicles and cell phones, and the use of controlled access for buildings. Wire tapping captures telephone calls and telegraph messages by physically going into the wire circuitry. Telephone or telegraph wires must actually be tap into in order to accomplish this type of surveillance. Bugging can be accomplished by placing a small microphone or other listening device in a specific location to transmit conversations to a nearby receiver and recorder.

Of those firms that admitted to monitoring employees almost half said they monitored employee phone calls, either by recording information about calls made or by actually listening to the calls themselves; others stored and reviewed electronic mail and voice mail messages of employees (Nacherla, 2008). Surveillance cameras or video cameras are used for the purpose of observing an area.Video surveillance is performed by noticeable or hidden cameras that transmit and record visual images that may be watched during the time which the activity is taking place or reviewed later on tape. They are often connected to a recording device, IP network, and/or watched by a security guard or a law enforcement officer.

Cameras and recording equipment use to be fairly expensive and required someone to monitor the camera footage. Due to cheaper production techniques, it is simple and inexpensive enough to be used in home security systems, and for everyday surveillance. Almost fifteen percent of employers admitted to videotaping employee job performance and 35.3 percent to videotaping for security purposes (Barrett, 2008). Wachovia has bought various tools to monitor and document employee behavior and to spot and evaluate any criminal activity (Wolfe, 2008). Hannaford Bros.

and Pathmark are using intelligent systems that interpret video images to identify employee theft and shoplifting (Garry, 2008).At many major casinos, trained security professionals are stationed in a video surveillance room closely observing the activity at the high-stakes gaming tables for hints of fraudulent behavior that would put the casino at risk. Mobile phones are also frequently used to gather location data. The geographical location of a mobile phone and the person carrying it can be determined through the GPS located whether it is being used or not. This is done through a technique known as mutilateration.

Mutilateration calculates the differences in time for a signal to travel from the cell phone to each cell towers near the owner of the phone (Surveillance: Technology and Law, 2008). Businesses monitor data and traffic on the internet through computer surveillance. Another form of surveillance that is on the rise is monitoring social networks through social networking sites such as Facebook, MySpace, Twitter as well as from traffic analysis information from phone call records (Kidwell & Sprague, 2009).These social networks are used to extract useful information such as personal interests, friendships and affiliations, wants, beliefs, thoughts, and activities.

It was found that general computer monitoring took many forms. 45 percent of computer monitoring included tracking content, keystrokes and time spent at the keyboard, 43 percent review computer files, 12 percent monitor external blogs to see what is being written about the company, and 10 percent monitor social networking sites (Watch What You Say...

and Write, 2008). By 1997, nurses in over 200 hospitals were wearing infrared badges made by Executone Information Systems. The infrared locator system is an infrared based wireless locating system which allowed the hospital to quickly locate people and equipment, improve staff efficiency, and enhance patient care.A new form of surveillance is on the rise with Microsoft. Microsoft recently obtained a patent for the next-generation worker surveillance that included software and sensors that monitor workers’ temperature, facial expressions, blood pressure, and more to give supervisors a picture of workers’ stress, frustration, and detect irregularities (Barrett, 2008). They are developing a computer system that could monitor stress levels against every task that is done within the company.

For example if you were suffering high levels of stress the system would alert your boss to the situation and he could make sure you had the appropriate support or if you were working more slower than usual then your boss would be aware of that too. Through electronic surveillance companies can use data collected to better secure their property employees and their customer through reduced theft, quality work, and faster productivity. Electronic surveillance is legal within the frame of the workplace but it also has many limitations and may have some legal risk for employees and employers.For example employers can install surveillance cameras around the workplace, as long as the cameras where there is no reasonable expectation of privacy. The Supreme Court ruled that there is a limited constitutional right of privacy based on a number of provisions in the Bill of Rights and subsequent amendments. This also consists of a right to privacy from government surveillance into an area where a person has a "reasonable expectation of privacy".

The criminal voyeurism laws of some states cover "a place where one would have a reasonable expectation of privacy" (Video Voyeurism and Surveillance Laws in the Workplace, 2006). A reasonable expectation of privacy means a place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.These laws make it a crime to secretly record or distribute images of people in places such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. Hearing the similarity to voyeurism, a jury might find that placing a hidden camera in a certain areas could warrant legal actions against a company. The federal law prohibits anyone from recording images of an individual’s “private areas” without consent when that individual has a reasonable expectation of privacy (Video Voyeurism and Surveillance Laws in the Workplace, 2006). Every state in the U.

S. now has some legal ban of video voyeurism or invasion of privacy, except Iowa and Washington D.C. Most of these laws make this kind of video recording a felony and many have an even harsher penalty for distributing such videos.

The monitoring of electronic communication devices, such as telephone calls, voicemail, email and IMs, is covered by the federal wiretapping and eavesdropping statute called the Electronic Communications Privacy Act (Video Voyeurism and Surveillance Laws in the Workplace, 2006).The ECPA does include several exceptions for business use to permit employers to perform necessary investigations, secure trade secrets and maintain inventory and receipts. Under the federal law, the monitoring of material such as email and phone calls is acceptable if either the sender or recipient consents or if it is done in the regular course of business (Busse, 2004). Only equipment owned by the employers can be monitored but they do not have the right to examine emails hosted by a third party. To keep from incurring legal actions against the company, employees should be provided with written notification of the existence or possibility of any monitoring in the workplace, whether it be video, audio or otherwise.Notices can be made a part of a written, distributed policy or a section in the employee handbook (Kidwell & Sprague, 2009).

To show that a clear understanding and acknowledgement of workplace surveillance, employees can even be asked to sign a form of consent. Many employees find surveillance of any sort offensive but if they have been properly informed and have signed consent legal action for invasion of privacy will be difficult to achieve. The trend of companies monitoring employees’ email and phone usage and more seems to be never ending. In dealing with the Business issues care must be given by management to balance its objectives of protection of property rights, increasing productivity and profitability, and maintaining employee morale while exercising care to comply with all relevant Federal and State laws. By doing so, employees face an uphill battle in bringing actionable complaints against employers regarding electronic workplace surveillance activities.