It’s a familiar refrain these days, with headlines blaring from most major news organizations, “People fear loss of privacy on the Internet.” Despite the efforts of many reputable companies to address citizens’ concerns, most people still are wary of who might be watching them as they watch the Web.
According to a recent survey released by the Center for Communication Policy at the University of California, Los Angeles, almost two-thirds of Internet users and more than 75 percent of nonusers think that going online endangers their privacy.
Since studies show that most Internet usage occurs while people are at the office, it is reasonable to conclude that much of that fear manifests itself while people are online at work. And if these figures aren’t enough to scare employees, another recent study conducted by the American Management Association, New York, found that most American companies have adopted what some would call an Orwellian, Big Brother approach to their employees’ use of the Web.
The AMA survey found that nearly three-quarters of major U.S. companies monitor their employees’ communications and activities. Of that 75 percent, about 12 percent monitor their employees without informing them of the practice. Thus it is probably best for most American workers to assume, regardless of whether they have been informed, that all e-mail communications and Web surfing activities are being monitored.
Though this Big Brother aspect of monitoring may be troublesome to employees, there are valid reasons for employers to engage in the practice. Most notably, companies may be held liable for the actions of employees who send or view pornographic, defamatory, racially insensitive, sexually suggestive or criminally threatening materials.
From a simple liability standpoint, companies must monitor their employees. But most privacy advocates have argued (and it appears many members of Congress agree) that employees must be given notice that such monitoring will occur. To that end, Congress is considering the Notice of Electronic Monitoring Act, which would require employers to notify employees, clearly and conspicuously, if their e-mail communications or computer usage will be monitored.
Despite the seemingly straightforward nature of the legislation, the bill does carve out an exemption if the monitoring is performed because the employer has reason to think that a particular employee has engaged in harmful conduct that violates the legal rights of the employer or another person and if the monitoring would show that the employee did, in fact, engage in the harmful conduct. Companies found in violation of the notice provision may be held liable for up to $20,000 per employee with an aggregate cap of $500,000 per incident.
Most telemarketing companies already are familiar with the types of disclosures that must be made to employees when their telephone calls are being monitored and/or taped. These new Internet requirements will mandate similar disclosures and consents.
Though most call center employees know that their activities are sometimes monitored, it is clear that many workers are concerned about their companies’ intrusion into another aspect of their lives. And, as with most new technologies, it is often the fear of the unknown that manifests itself into real-world fears.
On the Internet, much of the concern over privacy can be traced directly to individuals’ lack of understanding about how their activities are monitored and their information collected. The general population does not understand how cookies and other monitoring devices are used to track their Web activities. They have only read enough about them to know that they should be scared.
It is likely that monitoring employee activity creates similar emotions. Many employees fear it, as they do not know whether it is actually occurring, and even if they are being monitored, they have no understanding of how. It is the hope of the act’s sponsors that a little knowledge will go a long way toward eliminating these fears in the workplace.
• C. Tyler Prochnow is an attorney at Lathrop & Gage, Kansas City, MO, where he specializes in teleservices law.
