by Christine Pasciuti
EMS, EMD, ETS, ETT… have you heard of these? No, they don’t stand for electronic magnetic shield, or anything having to do with it. Here’s a hint: they all alert employers to any potential non-work-related activity, especially illegal or inappropriate use of the internet.
They’ve become common abbreviations for workplace surveillance, and its widespread use may surprise many of us. EMS=Employee Monitoring Services. EMD=Employee Monitoring Device. ETS=Employee Tracking Services, ETT=Employee Tracking Technology.
We know this technology has been around for years, but the degree to which these devices are now able to monitor and track employees in and out of the workplace is quite shocking!
The electronics manufacturer, Hitachi, has created a new high-tech ID badge called the Business Microscope. It utilizes complicated sensors allowing synchronization and interaction with other Business Microscopes belonging to the company.
What can it do? It measures and analyzes inner company communication and activities via an electronic nametag which is attached to employees. Still sound reasonable? When the sensors contained in each unit come within a specific distance to one another, recognition occurs and information gets recorded to a server; specifically face, time, body and behavior rhythm data.
In simpler language, this device tracks an employee’s exact location within the office, while also keeping a record of all other staff members the employee has spoken to. An employer—with the click of a mouse—receives information about employees’ locations (including the restroom), and the amount of time spent at each location. It even records how energetically and enthusiastically an employee has contributed to a group meeting. Are you getting uncomfortable yet?
Apparently Microsoft filed a patent in 2008 for remote employee tracking software, which would measure competence, productivity, body temperature, blood pressure and facial expressions, but the product was believed to have been abandoned shortly after the patent was filed.
The following are two more examples of existing software being currently advertised:
SpectorSoft offers Spector 360, which records all of an employee’s internet and application usage: all websites visited, screen shots taken, social media, chat and instant messaging (IM) accessed, document tracking, and can detect keywords and keystrokes.
InterGuard offers all of the above features, with the addition of GPS services, monitoring of critical data storage, as well as deleting/retrieving data and monitoring movement of confidential data.
By now, you must be asking yourself the obvious question about workplace privacy.
In a legal case filed in 2012 (United States v. Jones), the privacy implications of GPS (Global Positioning Systems) tracking was addressed by the U.S. Supreme Court, which deemed the placing of a GPS tracking device on a suspect’s car, a “search” under the Fourth Amendment. It’s clear that corporate GPS use for tracking employees is increasing, yet it remains unclear what effect the Supreme Court’s decision actually has in the private sector, because the decision was applied to government action.
Prior to the Jones holding, a New York court determined that it was “reasonable and lawful under the circumstances” to install a GPS device in a public employee’s personal vehicle to investigate misconduct during working hours. In 2011, a New Jersey state court similarly held that a private investigator did not unlawfully invade a plaintiff’s privacy when a GPS device was placed on their personal vehicle, reasoning that no privacy breach occurred because no travel by the plaintiff to a secluded or private area where privacy would be expected, actually took place.
That brings up the question of what reasonable expectations of privacy are. In the Jones case, the GPS tracking device was in place for four weeks, and went beyond the reasonable expectations of privacy under the Fourth Amendment. Justice Sotomayor noted that long-term GPS monitoring could expose a wide range of personal information, relating to family, politics, profession, religion and sexual associations.
Texas and California each have statutes that address the use of GPS tracking devices, deeming unlawful the placement of a GPS device on a vehicle without the owner’s consent. A Missouri federal court in 2005 determined no privacy invasion if GPS tracking is used on a company vehicle. Boundaries around GPS use in the workplace are still being established by judicial determinations of privacy expectations, and few courts have addressed the issue. Those that have generally permit the use of GPS in the workplace, though continued scrutiny of the practice should be expected.
Laws vary from state to state, and protocol differs in each country. In Canada for example, it is illegal to perform invasive monitoring unless necessity can be demonstrated, and no other options exist.
In Europe, the EU Directive 95/46/EC stipulates that a firm’s monitoring of an employee’s use of email, internet or phones as part of their business practice, without the knowledge or consent of the employee, can be sued under Article 8 of the European Convention on Human Rights.
In Maryland, all parties must consent before a conversation can be recorded. California law requires either a message alerting callers their conversations will be recorded, or an intermittent “beep” indicating the same. Connecticut, New York, Pennsylvania, Colorado and New Jersey also have laws that protect recorded conversations.
Keep in mind that the protections and freedoms guaranteed by the U.S. Constitution and Bill of Rights exist to protect the individual from the Government and do not automatically apply to the normal employee/employer relationship, so a case-by-case determination still has to be made in workplace occurrences.
Though a bit outdate, a 2005 survey of more than 500 U.S. companies revealed that over half the firms had disciplined employees for inappropriate use of the internet, and that one out of four employees were fired for it.