Spies in the corner office?

As rapidly as technology has given talkative humans new ways to connect with one another, it has added to the listening power of the third-party snoop. And these days - if you believe the statistics - nobody is listening in more than employers. Experts say frenzied competition, cheap monitoring technologies, and worries about litigation motivate bosses to look over employees' shoulders.

The Privacy Foundation, an advocacy group based in Denver, released a study earlier this year that says about 1 of every 3 Americans who use e-mail or the Internet regularly are being monitored by employers. By the foundation's counting, that's roughly 14 million workers out of the 40 million who regularly go online at work.

The American Management Association also released its annual survey of its corporate members: Three-quarters of the responding US firms reported that they record and review "employee communications and activities on the job, including their phone calls, e-mail, Internet connections, and computer files."

That figure, says the association, has doubled since its last study, in 1997. Critics of monitoring call the reported rise potentially damaging to worker morale.

But studies like the AMA's are often misinterpreted or not fully reported, cautions Carl Botan, a professor of communications at Purdue University.

"In the AMA study, those firms questioned tended to be the biggest and most sophisticated 5 to 10 percent of American employers," Professor Botan says, adding that the study did not ask respondents how much they watch or what percentage of their employees they target.

"It only asked if they monitored any [employees] at all, and what kinds of methods they used," he says. "A lot of media outlets have misreported the study. AMA is not saying that three-quarters of all employers monitor."

Firms accept personal Web use

Some corporate managers don't have a problem with personal Internet use at work. According to an April survey of 200 corporate chief information officers by CIO Magazine, most (62 percent) said "personal e-mail and Internet use at work increases employee productivity, because it empowers employees to multitask."

Only 17 percent in that study said they conducted even sporadic employee e-mail checks. Sixteen percent didn't monitor employee e-mail at all, and 11 percent reported peeking only at the e-mail of "problem employees." Thirty-eight percent reportedly intervene only after a complaint.

To get a clearer picture of what's happening, Botan is asking the National Science Foundation for a grant to conduct "the first ever national probability sampling in the US, to find out just how many people are actually surveilled, and what variations there are by region, industry, age, race, and sex."

Experts agree that companies have good reasons to monitor. Worker productivity is often at issue. Personal phone calls and e-mail can eat company time.

New technologies - such as downloadable music - offer new distractions.

In July, Northwestern University in Evanston, Ill., allegedly fired one of its secretaries for downloading music files on her work computer. She had downloaded some 2,000 files, despite her employer's prohibition against using company resources for personal reasons.

As more workers acquire home-based and portable technology, they may rely less on corporate hardware. The need to keep workers from personal Web surfing may also wane on its own.

"A decade ago, when Solitaire started coming out on Windows, managers lost a lot of time [to people] playing," says Eric Rolfe Greenberg of the AMA. "But the novelty wore off. The same will happen with people surfing the Internet."

In the meantime, the fear of litigation is no small motivator. Companies are eager to ensure that workers aren't exposed to pornographic material, for example, that may appear on a co-worker's screen.

Employment attorney Curtis Cotton, of the California-based firm GrayCary, says employers realize that many workplace lawsuits balance on what's been said in e-mail. Call it a virtual paper trail.

"Because workers use e-mail for everything, it often winds up being a huge discovery issue," Mr. Cotton says. "When faced with a lawsuit, we might end up getting on someone's hard drive and going back six months."

More about high-tech than curiousity

From the monitoring side, technology remains a big driver. Computer power is growing, and software for monitoring e-mail and Web behavior is relatively cheap.

Experts say much of the boom in workplace surveillance is due to such technological changes more than to rises in corporate curiosity or suspicion.

"It's easier and cheaper to engage in surveillance of computers and Internet activity than other kinds of communication," says Lee Tien of the Electronic Frontier Foundation in California.

"It is not that easy to review telephone conversations," Mr. Tien says. "In most cases, a person has to listen in real time."

Tien's observations are supported by the AMA study: Some 12 percent of employers reported recording and reviewing telephone conversations at least occasionally, and only about 8 percent said they ever reviewed voicemail messages.

But 36 percent stored and reviewed computer files, while 47 percent "monitored" e-mail on some level. (Such monitoring can include scanning the message traffic for words that arouse suspicion.)

Even so, many firms may run monitoring systems not to scrutinize and catalog employee communication, but to stay technologically current.

The flip side of monitoring is preemptive control, the use of blocking software to limit what workers can do online.

Workplace civil libertarians argue that such moves impose an employer's value system on workers. Others argue that removing temptation is a simple way to avoid messy problems.

What about the law? Do workers hang their privacy rights in the coatroom?

"People should be aware companies have these rights in law," says Mr. Greenberg. "Workers have practically no reasonable expectation of privacy in the workplace. We assume we take our constitutional rights of privacy to work with us, and the technology itself gives the illusion of privacy," he says. "But the Constitution protects from what the government can and can't do, not what employers can and can't do."

Cotton, the employment lawyer, agrees. "Even if companies fail to put employees on notice that they monitor, it is still legal," he says.

A legal swing toward workers

That may not be the case for long. Writing last year in the law journal The Green Bag, Judge James M. Rosenbaum of the United States District Court for the District of Minnesota proposed a "cyber statute of limitations" of about six months.

His proposal "acknowledges that even the best humans may have a somewhat less than heavenly aspect," and that "anyone is entitled to make a mistake and to think a less than perfect thought."

Judge Rosenbaum's article suggests that "a pattern of egregious behavior" might well be worth acting upon.

But it also holds that crossing into questionable areas of legal cyberspace probably should not. "This is the stuff which, in less electronic times, would have been wadded up and thrown into a wastebasket," he wrote. "This is what the delete button was meant for."

Earlier this month, judges at the Ninth US Circuit Court of Appeals in San Francisco, whose own Web habits were being monitored, instructed staff to shut down the courthouse's surveillance system.

They suggested monitoring programs could be illegal under the Electronic Communications Privacy Act of 1986, which prohibits certain interceptions of wire, oral, and electronic communications.

Other workers object more on general principles than on legal grounds. In Boston last month, a city councilor objected in the press to the installment of a hidden camera near the entrance to City Council chambers, recording the movements of vistors and officials alike.

"I don't think we need that level of scrutiny," he told The Boston Globe.

Such a backlash to monitoring may be fueled by overstatements. One expert, for example, was quoted in a national paper as saying the "entire workforce is now under suspicion."

Other articles have raised questions about the degree to which even telecommuters, working odd hours in home offices, increasingly face keystroke counts as a measure of their productivity.

Accurately gauging the scope of actual monitoring may be impossible, given the varying definitions among firms.

Also, reports that appear to refer to all working Americans often fail to remind readers that a great many workers remain eletronically untethered to their superiors.

Still, "with what's changed in software, we must all realize that surveillance is now simply a part of our lives," says Botan of Purdue.

"We are misapplying presumptions of an earlier generation," he says, "presumptions that don't fit in the Information Age."

Wonder where your managers stand?

Unclear on, or uncomfortable with, the issue of monitoring where you work? (That doesn't mean you're a miscreant, by the way.) Experts suggest these basic steps:

Consult your employee handbook. The vast majority of companies that do monitor inform their employees of their policies (not that they are required to).

Check for signs. If a website is blocked, for example, there may be reason to believe that someone has seen you try to get access to it. (Some sites also leave "cookies," which are stored on your computer's hard drive, itself the company's property.)

Don't fight back by installing spy-detection software. Andrew Schulman of The Privacy Foundation says such systems aren't usable at work. Company monitoring systems are network-based, he says, "and don't leave footprints on employee computers."

Stay informed. To track employee firings related to communications monitoring, visit http://www.privacyfoun dation.org/workplace/job_loss/index.asp

Be direct. If you really want to know, head over to the boss's office.

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