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Employee Monitoring and Computer Technology: Evaluative Surveillance V. Privacy

Published online by Cambridge University Press:  23 January 2015

Adam D. Moore
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Abstract:

In this article I address the tension between evaluative surveillance and privacy against the backdrop of the current explosion of information technology. More specifically, and after a brief analysis of privacy rights, I argue that knowledge of the different kinds of surveillance used at any given company should be made explicit to the employees. Moreover, there will be certain kinds of evaluative monitoring that violate privacy rights and should not be used in most cases.

Type
Articles
Information
Business Ethics Quarterly , Volume 10 , Issue 3 , July 2000 , pp. 697 - 709
Copyright
Copyright © Society for Business Ethics 2000

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References

Notes

This paper was presented at the APA Pacific Division Meetings (April 5–8, 2000). I would like to thank Nancy Snow, Mark VanHook, Bill Kline, and the other session participants for their comments and suggestions. I would also like to thank Kimberly Moore, Scott Rothwell, and an anonymous reviewer at Business Ethics Quarterly for reading and commenting on an earlier draft.

1 Marlene Piturro, “Electronic Monitoring,” Information Center, July 1990, p. 31; quoted in Richard Spinello’s Ethical Aspects of Information Technology (Englewood Cliffs, N.J.: Prentice Hall, 1995), p. 141.

2 J. Bentham, Panopticon (The Inspection House), originally published in 1791.

3 A longer version of this section appears in my article “Intangible Property: Privacy, Power, and Information Control,” American Philosophical Quarterly 35 (1998): 365–378. I would thank the editors of APQ for allowing me to present this material here.

4 Alan Westin, “Privacy in the Modern Democratic State,” in Ethical Issues in the Use of Computers, ed. D. Johnson and J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 187.

5 W. A. Parent, “Privacy, Morality, and the Law,” Philosophy and Public Affairs, Fall 1983, pp. 269–288; reprinted in Ethical Issues in the Use of Computers, ed. D. Johnson and J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 203 (all page citations refer to the reprint).

6 Legal scholar William Prosser separated privacy cases into four distinct but related torts.

Intrusion: Intruding (physically or otherwise) upon the solitude of another in a highly offensive manner. For example, a woman sick in the hospital with a rare disease refuses a reporter’s request for a photograph and interview. The reporter photographs her anyway, over her objection.

Private facts: Publicizing highly offensive private information about someone that is not of legitimate concern to the public. For example, photographs of an undistinguished and wholly private hardware merchant carrying on an adulterous affair in a hotel room are published in a magazine.

False light: Publicizing a highly offensive and false impression of another. For example, a taxi driver’s photograph is used to illustrate a newspaper article on cabdrivers who cheat the public when the driver in the photo is not, in fact, a cheat.

Appropriation: Using another’s name or likeness for some advantage without the other’s consent. For example, a photograph of a famous actress is used without her consent to advertise a product.

Dean William Prosser, “Privacy,” California Law Review 48 (1960): 383, 389, quoted in E. Alderman and C. Kennedy, The Right to Privacy (New York: Alfred A. Knopf, 1995), pp. 155–56. What binds these seemingly disparate cases under the heading “privacy invasions” is that they each concern personal information control. And while there may be other morally objectionable facets to these cases—for example the taxi driver case may also be objectionable on grounds of defamation—there is arguably privacy interests at stake as well.

7 Clinton Rossiter puts the point succinctly:

Privacy is a special kind of independence, which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns, if necessary in defiance of all the pressures of the modern society. . . . It seeks to erect an unbreachable wall of dignity and reserve against the entire world. The free man is the private man, the man who still keeps some of his thoughts and judgments entirely to himself, who feels no over-riding compulsion to share everything of value with others, not even those he loves and trusts.

C. Rossiter, Aspects of Liberty (Ithaca, N.Y.: Cornell University Press, 1958) quoted in Westin, “Privacy in the Modern Democratic State,” p. 188.

8 For more about privacy rights see E. Hendricks, T. Hayden, and J. Novik, Your Right to Privacy (Carbondale: Southern Illinois University Press, 1990); F. Cate, Privacy in the Information Age (New York: The Brookings Institution, 1997); B. Givens, The Privacy Rights Handbook (New York: Avon Books, 1997); Charles Fried, “Privacy,” Yale Law Journal 77 (1968): 477; A. Westin and M. Baker, Databanks in a Free Society (New York: Quadrangle Press, 1972); J. Rachels, “Why Privacy is Important,” Philosophy and Public Affairs 4 (Summer 1975): 323–33; and Paul Weiss, Privacy (Carbondale: Southern Illinois University Press, 1983).

9 IDG Communications, Inc., Infoworld, October 22, 1990; quoted by Anne Wells Branscomb in Who Owns Information? (New York: Basic Books, 1994), p. 92.

10 Alana Shoars filed a wrongful termination suit. “The lower court agreed with Epson’s lawyer that neither state privacy statutes nor federal statutes address confidentiality of Email in the workplace and dismissed the case.” Branscomb, Who Owns Information? p. 93. See Alana Shoars v. Epson America, Inc., No. SWC112749 (L.A. Super. Ct. 1990).

11 Branscomb, Who Owns Information? p. 93.

12 While the courts have ruled that employers cannot monitor their workers’ personal calls, the Electronic Communications Privacy Act of 1986 grants bosses a “business-use exception,” which allows supervisory and quality-control monitoring. J. Whalen, “You’re Not Paranoid: They Really Are Watching You,” Wired Magazine, March 1995. See also Briggs v. American Filter Co., 704 F.2d 577 (11th. Cir. 1983), Watkins v. L. M. Berry, 704 F.2d 579 (11th. Cir. 1983), and Hendricks et al., Your Right to Privacy, Part 2.

13 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977); reprinted in Justice: Alternative Political Perspectives, 3rd ed., ed. James Sterba (Belmont, Calif.: Wadsworth, 1999), p. 126 (all page references refer to the reprint).

14 J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 136– 142. The hope is that Rawls’s veil of ignorance will serve as a device that ensures impartiality.

15 Dworkin, Taking Rights Seriously, pp. 126–27.

16 Ibid., p. 127.

17 Employment agreements grant rights, powers, liberties, and duties to both parties. Thus an employee may trade privacy for some kind of compensation like time off or the opportunity to learn. When tradeoffs such as these have occurred we may take the obligations, generated by the agreement, as prima facie—alas, the agreement may have been brokered in unfair conditions. If I am correct, fairness of conditions and binding agreements that justifiably relax rights are guaranteed when the tests of thin and hypothetical thick consent are passed.

18 Even in these cases the different types of surveillance used should be made explicit to every employee.

19 J. Whalen, “You’re Not Paranoid: They Really Are Watching You,” Wired Magazine, March 1995.

20 Richard Spinello, Ethical Aspects of Information Technology (Englewood Cliffs, N.J.: Prentice Hall, 1995), p. 128.

21 R. H. Irving, C. A. Higgins, and F. R. Safayeni, “Computerized Performance Monitoring Systems: Use and Abuse,” Communications of the ACM, August 1986, p. 800.

22 I take consequentialist concerns to be factored into laws or market demands. That is, hypothetical thick consent includes utility maximization arguments for requiring licenses, safety regulations, and the like.