Why has government surveillance become a major political issue, while workplace monitoring barely registers? The Citizens United ruling, of course, has played a role—money talks in politics, and the employer lobby dwarfs even the spy sector. But there are also some misconceptions that can explain this asymmetry in attention.
Many libertarians argue that the threat from the NSA or FBI is far graver than that coming from any private company—firms, no matter how oppressive, cannot put their employees in jail. However, they can and often do share their information with the government. For example, when a woman was interrogated for an innocent search about pressure cookers by anti-terrorism task force agents who were scared she might be the next Boston bomber, it was her employer that had flagged her as a threat—not any NSA dragnet. Robust workplace privacy rules could have prevented her company’s monitoring of her actions.
Those who focus on the government’s privacy infringements also tend to emphasize that, while employees can switch jobs, it is much harder to move to another nation to avoid American surveillance. But this argument is a red herring as well: Competitive pressures and Big Data faddism are combining to motivate bosses to impose ever stricter surveillance regimes on their workers, which likely will become the rule rather than exceptions. Employees also find it next to impossible to bargain for privacy when they are moving from job to job; it simply is not up for negotiation for the vast majority of workers. As companies race to the bottom in privacy practices, individual workers have next to no leverage to halt the slide.
Legal scholars have been sounding the alarm for years now, and should get more attention from policymakers. Lothar Determan’s and Robert Sprague’s findings, for example, are stark: Europe has taken concrete steps to protect worker privacy, while America has fallen far behind. For example, they write,
Germany, Italy, the Netherlands, Spain, and the United Kingdom strictly prohibit ongoing monitoring of employee communications and permit electronic monitoring only in very limited circumstances (e.g., where an employer already has concrete suspicions of wrong-doing against particular employees), subject to significant restrictions with respect to the duration, mode, and subjects of the monitoring activities.
Some EU jurisdictions also require consultations by employers with “unions or other employee representative bodies before subjecting their employees to surveillance measures.” By comparing American workplace monitoring with more balanced approaches, they demonstrate just how out of lopsided our workplace power relationships have become. Privacy experts recommend clear limits on business power, realizing that the logic of market competition in data-driven industries is to constantly demand more invasive inspections of workers’ performance, levels of concentration, attentiveness, and physical condition.