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What about when consent to surveillance is withheld?

It is all very well for the law professor to say that the employer should first seek consent before conducting surveillance in the workplace.

I see two problems with this. The first is that it does not make much security sense at the organisational level to have a surveillance patchwork in which some employees (who have consented) are spied on, and the remainder are not. In addition, it would add a further nightmarish complication to the task of administering the IT system, especially if there were many employees to cater for.

The second, related, problem is that in practice it would be very difficult for an individual employee (especially a low-level one) to refuse to permit the employer to spy on him without laying himself open to adverse consequences. This means that although he might formally be asked to give consent, he would quite likely be fearful of withholding it for fear of getting sacked (especially in the USA, where job security is much more tenuous than in the EU). Therefore such consent would not really be consent at all but compliance achieved through coercion or fear.

The only time that consent would be meaningful if the employees were represented by a trade union, workplace council or the like which was able to negotiate on more equal terms with the employer and thereby take the heat off individual employees. Even then, some individuals might find themselves at odds with their official representatives' position.

I don't see a ready solution to this conundrum.

Posted by: Reality Checker   Posted on: 12/02/04 You are currently: a Guest | Members login | Terms of Use

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