Out of corporate view, but under Big Brother’s watch?
Technology is allowing employers to keep tabs on workers, raising privacy concerns
When the pandemic sent much of the world’s workforce home last March, Jerry Davis feared a dystopia of computer surveillance would emerge — a corporate secret police state in our kitchens and dens.
So, almost a year into COVID-19’s new normal, is such widespread spying taking place?
“My sense is, yes,” says Davis, a professor of business administration at the University of Michigan. “But it’s harder than you think to get the kind of detailed (information from those who might be surveilling us.) Companies don’t report just how horrific their monitoring practices are,” he says.
Not all experts feel the situation is so dire, however.
Others believe that home surveillance is less pervasive and more benign than Davis’s admittedly “dark places” mind imagines.
Toronto lawyer Carissa Tanzola has seen no signs of Big Brother looming.
“Everything was a big question mark, everything was in flux in March and April, and I think it was fair to have some concerns,” says Tanzola, a labour and employment specialist with the Toronto firm Filion Wakely Thorup Angeletti. “Were (employers) going to require people to log on to whatever virtual platform they were using and be on video eight hours a day, or were they going to be monitoring keystrokes?” she says.
Those surveillance concerns largely evaporated over the year as labour priorities focused on accommodating homebound workers, many of whom had to care for schoolchildren and/or tend to elderly relatives, she says.
Tanzola, who is a past chair of the Ontario Bar Association’s labour and employment section, says companies have increasingly turned to measures of output, instead of hours worked, to judge employee performance.
“It became, I think, less of a conversation on privacy (in terms of) worker rights and more of a conversation on how are we really going to get through this together,” she says.
“So I’ve seen all kinds of flexibility, which means nobody is monitoring it, so long as the work is getting done.”
Yet there are hints and signs that employer prying is widespread and likely, Davis says. For one thing, he says, the longingrained boss-worker cultures of corporations and the emerging technologies available to them make the surveillance of homebound employees both tempting and easy.
For another, Davis says, universities are most certainly and openly doing it to their homeschooling students.
“Employees might not like to rat out their employer, but students will absolutely rat out their professor,” he says.
And Davis says the exammonitoring software — with names like Proctorio, Examity, ProctorU, Respondus, and Honorlock — that colleges and universities employ to keep an eye on students taking tests at home has many young scholars apoplectic.
“It’s pretty dark … students are going crazy with this,” he says.
“You’re supposed to lift up your laptop or camera and then walk around the room showing them everything in your vicinity,” he says.
Using the same computer camera, a person — likely somewhere far offshore — or artificial intelligence technology does the monitoring.
“If you look off screen too often, they flag you as a possible cheater … it’s super intrusive,” Davis says.
“It’s capturing their activities while they are trying to take an exam, which is already stressful enough.
“And you can’t say, ‘I need to get up and go to the bathroom.’
You go to the bathroom, you fail.”
Davis says the Proctorio system is particularly despised by students, using face, computer and gaze monitoring software to track the nervous scholars’ eye, head and mouse movements, among other things.
“A student can be flagged for finishing the test too quickly, or too slowly, clicking too much, or not enough,” a November Washington Post story on the technology said.
Such levels of intrusiveness are possible as well in the work world, much of which is culturally primed for employee surveillance, Davis says.
In many companies, he says, looking over a worker’s shoulder has been seen as one of a boss’s daily duties.
And the ability to do this remotely, he says, is being enhanced at an astonishing pace.
Some of the most popular — ActivTrak, Time Doctor, Teramind and Hubstaff — have posted significant sales increases since lockdowns were initiated, according to WIRED Magazine.
“Once installed, they offer an array of covert monitoring tools, with managers able to view screenshots, login times and keystrokes at will to ensure employees remain on track working remotely,” the tech magazine reported in September. According to Davis “the technology is definitely in place for firms to do this … and the technology keeps getting better.”
He points, for example, to a new wrist-worn device from Amazon — known as the Halo — that, among other things, can keep tabs on your mood — a potential workplace concern.
“It’s really, really intrusive. It’s got a microphone, machinelearning algorithms that analyze your voice (and) will give you feedback like, ‘You’re sounding too tense,’ or, ‘You’re being too assertive,’ ” Davis says.
In more of a work-oriented development, he points to proposed but so far unnamed Microsoft “meeting insight computing system” technology that allows employers to “read a room” during remote confabs. They can keep track of every eye roll and “tell,” he says.
“It can score meetings using people’s body language and facial expressions and other data, which is kind of scary,” says Davis, who is currently writing a book on corporate power and how to tame it.
And the platforms for such meetings — such as Zoom and Microsoft Teams — could pose privacy threats themselves, he says.
“Imagine that they were keeping track of every meeting … which would then yield a searchable archive,” he says.
Such archival information, encompassing millions of meetings from untold numbers of companies, would be invaluable to domestic spy agencies, or to private entities like hedge funds, Davis says.
Ryerson University’s Sumit Bhatia says he is unaware of any company using this unsavoury surveillance. That doesn’t mean, however, that employers are not monitoring their workers. “I do know that generally in the business ecosystem right now, that is a pressing concern,” says Bhatia, director of innovation and policy at Ryerson’s Rogers Cybersecure Catalyst, a national centre for cybersecurity.
“There are certainly companies that are using surveillance tools and softwares to monitor different parts of their employees’ professional lives,” he says.
Davis says that the banking sector deploys surveillance on its employees more than any other.
“Hands down,” he says. “Banks usually have ‘compliance departments’ that finely monitor the activities of anyone handling client money, and they are extremely sensitive to any remote hint of theft or fraud.”
Indeed, Davis says, banks very likely play an early adopter role in employee surveillance technologies and their protocols.
“My sense is that banks essentially underwrite the development of surveillance tools,” he says, citing software that might monitor for trigger words or phrases and odd email patterns.
“And then once it has been rolled out at the banks, it can be adapted elsewhere.”
One of the problems that has emerged is that people are often unclear just what is and isn’t being monitored as they sit there in their pyjamas, Bhatia says.
“The bigger part is the question around transparency versus whether or not people are being monitored,” he says.
Privacy laws covering federally regulated employers make monitoring disclosures
mandatory, Bhatia says.
All good and ethical companies would feel duty bound to inform their workers about surveillance practices, many of which were in place back in their pre-pandemic offices, he says.
“I’m a firm believer (in) being transparent right from the beginning with your employees and just letting them understand what level of surveillance is taking place,” Bhatia says.
With few practical or legal guarantees that this will happen, however, it’s up to employees to police and protect themselves, he says.
“Because there may be organizations that are not operating transparently, I think the onus and the responsibility of personal care falls on the employee,” Bhatia says.
“If you’re using a work laptop, don’t use it for personal purposes; if you’re connecting to an employer’s network … don’t use that for personal browsing,” he says.
Actual rules governing workplace surveillance in Canada are grey and differ depending on such things as union status says, Puneet Tiwari, legal counsel at Peninsula Canada, a human resource and health and safety consulting firm.
“It’s a lawyer answer. It depends,” Tiwari says of the surveillance rights that employers have and their transparency obligations.
The likelihood that they can employ this surveillance apparatus is very high, he says. There is no clear legislation in Ontario covering this.
Federal legislation known as PIPEDA (the Personal Information Protection and Electronic Documents Act) prevents companies from selling or leaking personal data, Tiwari says.
Being in a union can offer worker protections as the extent of surveillance and transparency obligations of the employer can be negotiated through collective bargaining, says Evan Light, an assistant professor of communications at York University.
As well, Tiwari says, there is some case law in the province that could limit the extent of surveillance and the use of the information gained from it.
“It can’t be something ridiculous. (The employer can’t decide) ‘Let’s grab everything the employee is doing,’ ” he says.
And policies on browsing on company computers differ between employers, Tiwari says, though the rules should be clearly stated.
“I am not sure frightened is the right word, but employees need to be aware of what is being monitored or what can be monitored, and employers and employees need to have that open communication.”
Regardless of the rules, Tiwari says there is a plethora of software employers can install to monitor their workers.
“There’s the basic software that allows employers to collect, archive and search through all of the work emails,” Tiwari says.
“But there’s more intrusive software which monitors mouth movement, which monitors activity … really they can monitor everything, even keystrokes.”
Indeed, there’s software available to monitor practically “anything you can think of,” Tiwari says. “That also includes activating your (laptop) camera or microphone.”
As workers fled their offices last spring, at least part of the time that companies took to supply them with home equipment was used to install some or all of this software, Tiwari says.
“Now do companies have your laptop camera on at all times? Absolutely not,” he says.
“But are all of your work emails being archived? Absolutely.”
Some have suggested that avoiding any surveillance concerns might be as simple as using your own, rather than company, equipment at home.
But Tanzola says that companies may be able to force their electronics on workers as a condition of employment.
“It kind of begs the question: What were you doing beforehand? Were you using your own equipment pre-pandemic?” she says.
And even if personal equipment was being used, employers could make reasonable demands where confidential information was being processed.
Light, on the other hand, says there is real cause for concern with the potential for having “pretty all-knowing” equipment in your home.
“For me it’s worrisome on a bunch of levels,” Light says.
“One, in terms of power dynamics, it has the potential to be really invasive and exploitative and, in the short and long term, change the relationship between people and their professions.”
Light says surveillance holds the possibility of bringing 18thcentury factory culture into people’s homes during a pandemic.
“It also normalizes the idea of surveillance and the loss of personal privacy,” he says.
And Davis points out that much of the world will continue working from home, at least part time, even after the pandemic is defeated.
“And, if the workforce is going to be remote, it’s hard to imagine that bosses will universally adopt a trusting attitude,” Davis says.
“It would take a real cultural shift in corporate North America for bosses to be willing to use only output-based measures of productivity.”
“But there’s more intrusive software which monitors mouth movement, which monitors activity … really they can monitor everything, even keystrokes.”
PUNEET TIWARI
LEGAL COUNSEL