Electronic surveillance

A software company recently emailed us an advertisement containing this:

Are your employees:
Pretending to work when they are really shopping online?
Chatting to their friends in your time?
Gambling online?
You can now secretly and remotely monitor any PC … in the office.

The associated website boasts that the software will allow your employer to:

• See every website visited.
• Read every email sent or received.
• All keystrokes recorded. Secret passwords revealed.
• Capture online chatting on MSN & Yahoo.
• Restrict access only to sites you have approved.
• Capture screen snapshots automatically at regular intervals.
• In ‘Stealth mode’ the program works secretly in the background.
• Password protected – only you can access the program.

Any routine use of software of this kind demonstrates a dismaying level of contempt for employees. If you are a manager, and tempted by it, you’d probably do better to give some thought to why you don’t trust your own recruitment decisions.

But this blog is mainly written for employees and those who advise them – so the practical questions are ‘Is your employer legally entitled to spy on you in this way?’ and ‘If not, what can you do about it if they do?’

Amend your contract

It is always worth reading your contract carefully before you sign it, and having a shot at getting it changed if you don’t like it. See More about references for suggestions about this in a different context. Here, though, you will probably need to make a fuss: the point is to stop them spying on you, not just to make it a breach of contract if they do, so they need to be aware that you object.

If your contract simply says that you agree to abide by the terms of the employer’s internet usage policy, or something of that nature, then you can ask to see the policy before you sign the contract.

constructive dismissal

If your employer monitors your internet usage without giving you clear advance warning that they may do so, this is probably a fundamental breach of contract – particularly if they access personal information about you without your consent. So if you resign because of this kind of behaviour, it will be arguable that you have been constructively dismissed. (Though it is never a good idea to base a decision to resign on the expectation that you will be able to claim constructive dismissal: only resign if you want to anyway, whether or not you’ve got a good claim.)

subject access request

If you think your employer (or ex-employer) may be holding information about you that you’d like to see, you can make a subject access request under the Data Protection Act to require them to tell you what they’ve got.

Freedom of Information Act

If you work for a public authority (listed at Schedule 1 to the Act), and you suspect that they may be engaging in this kind of spying, you could think about teasing them with a FOIA request. You won’t be able to get specific information about any individual’s usage (including your own) this way, but you may be able to find out in general terms what they are up to.

Regulation of Investigatory Powers Act 2000

Some of the things this kind of spyware is designed to do are likely in some circumstances to constitute criminal offences or civil wrongs under RIPA – especially if the employer gives no indication or warning that this kind of monitoring may take place. This is a complicated area beyond the scope of this blog (that’s author-talk for “we don’t know enough about it to explain properly”), but if – for example – you have good reason to think that your employer has been reading your private web-based email it might be worth looking into.

In practice

Detecting such monitoring is difficult. If you are using a work computer, it will be impossible without administrator access – anyway unless you are a skilled hacker, in which case the only advice you need from us is that exercising those skills on your employer’s computer system will almost certainly amount to gross misconduct. It follows that it is always sensible to assume that your employer might read anything you write or receive on their computer. This has obvious implications for people involved in or considering litigation against their employer.

There’s an eye-opening fictional account of surveillance gone mad in Cory Doctorow’s excellent novel Little Brother.

Finally

Do remember that if relations with your employer become sour, it is easy to start feeling a bit paranoid – so don’t be too ready to assume that covert monitoring is going on. The best rule is: assume your employer isn’t snooping unless there is clear evidence that they are – but act as if they might be.

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