Category Archives: Privacy

Future Work

Source: Jeffrey M. Hirsch – University of North Carolina School of Law, February 14, 2019

From the abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

The Wired Guide to Your Personal Data (and Who Is Using It)

Source: Louise Matsakis, Wired, February 15, 2019

On the internet, the personal data users give away for free is transformed into a precious commodity. The puppy photos people upload train machines to be smarter. The questions they ask Google uncover humanity’s deepest prejudices. And their location histories tell investors which stores attract the most shoppers. Even seemingly benign activities, like staying in and watching a movie, generate mountains of information, treasure to be scooped up later by businesses of all kinds.

Personal data is often compared to oil—it powers today’s most profitable corporations, just like fossil fuels energized those of the past. But the consumers it’s extracted from often know little about how much of their information is collected, who gets to look at it, and what it’s worth. Every day, hundreds of companies you may not even know exist gather facts about you, some more intimate than others. That information may then flow to academic researchers, hackers, law enforcement, and foreign nations—as well as plenty of companies trying to sell you stuff…..

….The trade-off between the data you give and the services you get may or may not be worth it, but another breed of business amasses, analyzes, and sells your information without giving you anything at all: data brokers. These firms compile info from publicly available sources like property records, marriage licenses, and court cases. They may also gather your medical records, browsing history, social media connections, and online purchases. Depending on where you live, data brokers might even purchase your information from the Department of Motor Vehicles. Don’t have a driver’s license? Retail stores sell info to data brokers, too…..

Prisons Across The U.S. Are Quietly Building Databases Of Incarcerated People’s Voice Prints

Source: George Joseph, Debbie Nathan, The Intercept, January 30, 2019

….Dukes, who was released in October, says he was never told about what that procedure was meant to do. But contracting documents for New York’s new prison phone system, obtained by The Appeal in partnership with The Intercept, and follow-up interviews with prison authorities, indicate that Dukes was right to be suspicious: His audio sample was being “enrolled” into a new voice surveillance system.

In New York and other states across the country, authorities are acquiring technology to extract and digitize the voices of incarcerated people into unique biometric signatures, known as voice prints. Prison authorities have quietly enrolled hundreds of thousands of incarcerated people’s voice prints into large-scale biometric databases. Computer algorithms then draw on these databases to identify the voices taking part in a call and to search for other calls in which the voices of interest are detected. Some programs, like New York’s, even analyze the voices of call recipients outside prisons to track which outsiders speak to multiple prisoners regularly.

Corrections officials representing the states of Texas, Florida, and Arkansas, along with Arizona’s Yavapai and Pinal counties; Alachua County, Florida; and Travis County, Texas, also confirmed that they are actively using voice recognition technology today. And a review of contracting documents identified other jurisdictions that have acquired similar voice-print capture capabilities: Connecticut and Georgia state corrections officials have signed contracts for the technology (Connecticut did not respond to repeated interview requests; Georgia declined to answer questions on the matter)…..

GINA, Big Data, and the Future of Employee Privacy

Source: Bradley A. Areheart & Jessica L. Roberts, Yale Law Journal, Vol. 128 no. 3, January 2019

Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA could represent the future of employment law.

The Datafication of Employment: How Surveillance and Capitalism Are Shaping Workers’ Futures without Their Knowledge

Source: Sam Adler-Bell and Michelle Miller, The Century Foundation, December 19, 2018

We live in a surveillance society. Our every preference, inquiry, whim, desire, relationship, and fear can be seen, recorded, and monetized by thousands of prying corporate eyes. Researchers and policymakers are only just beginning to map the contours of this new economy—and reckon with its implications for equity, democracy, freedom, power, and autonomy.

For consumers, the digital age presents a devil’s bargain: in exchange for basically unfettered access to our personal data, massive corporations like Amazon, Google, and Facebook give us unprecedented connectivity, convenience, personalization, and innovation. Scholars have exposed the dangers and illusions of this bargain: the corrosion of personal liberty, the accumulation of monopoly power, the threat of digital redlining, predatory ad-targeting, and the reification of class and racial stratification.3 But less well understood is the way data—its collection, aggregation, and use—is changing the balance of power in the workplace.

This report offers some preliminary research and observations on what we call the “datafication of employment.” Our thesis is that data-mining techniques innovated in the consumer realm have moved into the workplace. Firms who’ve made a fortune selling and speculating on data acquired from consumers in the digital economy are now increasingly doing the same with data generated by workers. Not only does this corporate surveillance enable a pernicious form of rent-seeking—in which companies generate huge profits by packaging and selling worker data in marketplace hidden from workers’ eyes—but also, it opens the door to an extreme informational asymmetry in the workplace that threatens to give employers nearly total control over every aspect of employment.

The report begins with an explanation of how a regime of ubiquitous consumer surveillance came about, and how it morphed into worker surveillance and the datafication of employment. The report then offers principles for action for policymakers and advocates seeking to respond to the harmful effects of this new surveillance economy. The final sections concludes with a look forward at where the surveillance economy is going, and how researchers, labor organizers, and privacy advocates should prepare for this changing landscape ….

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
(subscription required)

This is part two of a multi-part series on the evolution of labor and employment law in the United States.

When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.

New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.

All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..

Related:
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
(subscription required)

Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..

Workplace Monitoring: Where Do Employers Draw The Line?

Source:
Gina LeBlanc, McGuireWoods LLP, December 12, 2018

Recent developments in privacy law and a rise in class action lawsuits related to data collection offer a cautionary tale about understanding legal and ethical boundaries of monitoring “on-the-clock” employee conduct. With a hodgepodge of federal, state, and local legislation governing employee privacy rights, employers are often left to navigate a complicated legal landscape while balancing the practical need to understand how employees are using company information and equipment. Employers, for example, have a legitimate interest in protecting company trade secrets, detecting unlawful transmission of unlicensed material, and improving work productivity. Employees, on the other hand, may have a reasonable expectation of privacy in certain contexts while at work.

This quandary begs the question, where do employers draw the line?

What Your Boss Could Learn by Reading the Whole Company’s Emails

Source: Frank Partnoy, The Atlantic, September 2018

Employee emails contain valuable insights into company morale—and might even serve as an early-warning system for uncovering malfeasance.

Related:
Text Analysis Systems Mine Workplace Emails to Measure Staff Sentiments
Source: Alan Rothman, LLRX, September 22, 2018

….Today the text analytics business, like the work done by KeenCorp, is thriving. It has been long-established as the processing behind email spam filters. Now it is finding other applications including monitoring corporate reputations on social media and other sites.

The finance industry is another growth sector, as investment banks and hedge funds scan a wide variety of information sources to locate “slight changes in language” that may point towards pending increases or decreases in share prices. Financial research providers are using artificial intelligence to mine “insights” from their own selections of news and analytical sources.

But is this technology effective?….

….. Now text analytics is being deployed at a new target: The composition of employees’ communications. Although it has been found that workers have no expectations of privacy in their workplaces, some companies remain reluctant to do so because of privacy concerns. Thus, companies are finding it more challenging to resist the “urge to mine employee information”, especially as text analysis systems continue to improve.

Among the evolving enterprise applications are the human resources departments in assessing overall employee morale. For example, Vibe is such an app that scans through communications on Slack, a widely used enterprise platform. Vibe’s algorithm, in real-time reporting, measures the positive and negative emotions of a work team. …..