Employee Surveillance: The Road to Surveillance is Paved with Good Intentions
30 Pages Posted: 31 Aug 2018 Last revised: 21 Feb 2019
Date Written: August 18, 2018
Employee surveillance was for some while the Cinderella sister of surveillance studies: neither as outright shocking to citizens as state surveillance in the post Snowden era, nor as ubiquitously discussed as consumer targeting and profiling in the “surveillance capitalism” ecology of social media, search and e-commerce platforms like Google, Facebook, Amazon et al. Yet employee surveillance is increasingly universal, both at hiring stages and after work has commenced, and often dominates selection, promotion and firing. Much publicity has particularly recently surrounded surveillance in the “gig economy”. Employee surveillance has become a perfect storm of convergence of establ;ished technologies, such as CCTV and email and Web interception, with more recent developments such as tracking via connected devices (cars, wearables, phones et al) and algorithmic profiling and prediction. We (a) propose a novel five-stage model of employee surveillance and then (b) present a fortuitous case study which demonstrates how technologies introduced into the workplace for beneficial reasons may morph via function creep into privacy invasive tools of surveillance. The recent academic (UCU) strike action in the UK threw up a highly combative environment where some universities are attempting to “strike break” by replacing, without new permission or consent, striking academics with recordings of their lectures made in previous years, usually for laudable motivations such as widening access and allowing students to revise. On examination, this practice of mandated lecture capture, unchallenged when used to help students but now under examination when its use is transformed, is often of dubious legality, both with reference to copyright and data protection, as well as overarching privacy rights and the relationship of trust and confidence between employee and employer. Furthermore, evidence is emerging that some universities are without publicity using lecture capture as a surveillance mechanism to grade or intimidate academics, or as a means to covertly replace them entirely. Serendipitously a recent ECtHR case, ANTOVIĆ AND MIRKOVIĆ v. MONTENEGRO (Application no. 70838/13) (28 November 2017) provides some ammunition with which to dispute these transformative and unsettling re-uses of recorded lectures. Finally, we consider the negative consequences of such non-permissioned re-use, which includes not just breach of trust to academics and depreciation of the employment relationship, but withdrawal from positive uses of surveillance techniques such as widening participation and enabling access.
Keywords: employment law; surveillance; video; cctv; academic freedom; lecture capture
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