Re: Employer Probing Precedents?

[Greg Broiles <gbroiles@darkwing.uoregon.edu>]

At 10:12 PM 12/28/95 -0800, Tim May wrote:

>However, corporations aren't given the luxury of disassociating themselves
>from the actions of their employees. (Contract workers are a further issue,
>and the issue of whether they supply their own tools/computers, workspace,
>etc., enters in.)

I think this point about "contract workers" is going to become a lot more
interesting as people move away from the traditional "employee for life"
model and towards working at home/telecommunity, or working as
subcontractors/consultants, etc.

Further, it's becoming more common for employees to own their own
communcations tools, and bring them to work. Arguments about a right to
eavesdrop as being derived from workplace property ownership don't seem to
work where an employee is talking on their personal cell phone,
getting/sending messages on the SkyTel two-way pager that they pay for,
using their laptop/Newton/PDA to get/send E-mail (using their private
ISP/POPmail provider mailbox), and so forth. The concerns (about disclosure
of secrets or wasting of time) raised to justify the invasions of employee
privacy are still present, of course, but not the convenient "it's not your
phone so you have no privacy" excuse. 

Employee/contractor ownership of work tools (or non-work related
communication tools in the workplace) is probably going to get even more
interesting; recent Ninth Circuit decisions re copyright law and licensing
agreements have been sharply restricting the right of software licensees to
allow third parties to use the licensed software. (e.g., _MAI v. Peak_ and
_Triad Systems_, see http://darkwing.uoregon.edu/~gbroiles/triad for more on
this and pointers to other analysis and the opinions themselves) I think
this may lead to software licenses (or hardware ownership) which follows
employees from home to work, and from job to job. Employees may get a
credential from Microsoft, or Borland, or Mathematica or Word Perfect saying
that they're allowed to be using a set of software tools; professionals will
probably pay for those credentials themselves, or have them paid for as a
fringe benefit of employment. An easy connection is to training related to
the "software-right" - the licensor would also certify that the employee has
been subjected to X hours of training and knows at least Y buzzwords and Z
fancy tricks relating to the software. Retired or unemployed workers may
work in a "black market", using software they're trained on but not
licensed/certified for, logging on with the credentials of licensed users
who have died recently or are sleeping. (Similar to the network of
unlicensed uninsured under-the-table contractors, framers, electricians,
drywall installers, etc., who exist at the fringes of construction
activity.) And so on.  

>I maintain that my employees are beholden to me as to what they run on
>their computers. They can always choose not to work for me. (And the same
>applies to hotels, actually. Were a hotel to have stringent rules on
>in-room behavior, such as the YMCAs and religious retreat hotels have, then
>customers have little right to complain about bed checks, mixed sex bans,
>etc. That most hotels have no such rules says more about where the
>Schelling points are than it does about the efficacy of rules and laws.

Subscribers to the Coase theorem would suggest that (modulo transaction
costs) it doesn't matter who is initially assigned the right to determine
whether or not surveillance will occur - the party who most values that
right will bargain for it in the end. Then again, that party may lose
something in exchange - and that's what makes this interesting. (And, I
think, much too complex to simply be dismissed as a matter of "property
rights". Then again, property looks to me like something that law creates,
not something which exists pre-law which law is created to protect. YMMV.)
I'd rather see the right to control surveillance assigned to employees, and
let employers pay extra for it if they think it's necessary to their
business situation. (Some might argue that this is the current situation, or
at least that surveillance is something that market participants bargain
over. My impression is that the current situation is legally murky absent a
clear statement re "we're going to monitor you on the phone and search your
briefcase when you enter and leave" and that a clear resolution re the legal
baseline of surveillance would be useful to bargainers. And if we were to
set a baseline for further bargaining, I'd rather see it set to favor
employees.)
--
"The anchored mind screwed into me by the psycho-  | Greg Broiles
lubricious thrust of heaven is the one that thinks | gbroiles@netbox.com
every temptation, every desire, every inhibition." | 
	-- Antonin Artaud		   	   |