UniRecovery Information technology and workers' privacy: introduction

Information technology and workers' privacy: introduction

Mark Jeffery

Professor of Law and Political Science Studies (UOC)
mjeffery@uoc.edu

Abstract:

The widespread use of information technologies means that the surveillance of workers and the processing of personal data about them can now be much more effective—and much more intrusive—than ever before. This introduction sets the scene for a collection of papers which examine this issue (some by describing the law in a particular country, some by examining a particular issue of comparative law). It argues that, although some degree of surveillance and data processing is a normal and perfectly legitimate part of most employment relationships, the use of computer technologies has resulted in some very significant changes in the nature of both, and that it is therefore appropriate to reassess the role of the law in setting a balance between the rights and interests of employers and employees in this area. This question is sometimes presented in terms of a contest between, on the one hand, the new and pressing needs of businesses (many of which arise from the use of new technologies), and on the other, the somewhat vague concept of the employees' right to privacy. Such a framework for debate should be considered very carefully. Privacy, although difficult to define, is nevertheless taken to be a fundamental right in all of the countries covered by this study. And many of the arguments in favour of using the increasingly-efficient—and increasingly-intrusive—means of surveillance and data processing which are now available, appear to relate less to the absolute needs of employers, and more to the convenience for employers in taking advantage of these new opportunities, irrespective of the consequences for the privacy of employees. There are no easy solutions to these questions, and in drawing a balance between the opposing rights and interests, national laws will doubtless build on their own particular traditions. Nonetheless, given that other legal systems are also having to address these same difficult questions, it is hoped that an examination and comparison of the different ways in which they are doing so will prove interesting and useful.

Information technology and workers' privacy

The use of computers in the workplace, and more specifically, the use of technologies that allow data to be collected, stored, retrieved and processed, [1] presents significant new opportunities—and equally, presents significant new threats. Employers may now have easy access to a huge amount of information about each and every one of their employees; and they may now be able to process that information in ways that were impractical or impossible only a few years ago. Thus there are now many opportunities for employers to improve the effectiveness of their existing mechanisms for the surveillance of workers and for the processing of personal data about them; and there are also opportunities to develop entirely new mechanisms, that are much more effective than anything ever used before. The flip side of this is of course that the workers involved will be subject to surveillance and data processing that is much more effective—and thus much more intrusive—than ever before. The use of the new information technologies may result in a very significant erosion of the privacy enjoyed by each individual worker: emotional headlines referring to "Big Brother", and to "spying" or "snooping" upon workers, are evidence of the important social concerns that may be involved. [2] A decision must therefore be taken as to how far this development should be considered the acceptable extension of long-standing and perfectly legitimate practices by employers; and whether, and to what extent, the privacy of individual workers should be protected against the new threats, either by the extension and adaptation of existing laws, or by the development of new ones.

This situation presents an unusually good opportunity for comparative labour law. New technologies and techniques have become available to employees throughout much of the world at much the same time, and so all countries where the use of computers is widespread are obliged to address very similar questions. The present collection of papers aims to examine the law of seven different legal systems—those of Brazil, England, France, Germany, Italy, Spain and the United States of America—and then to discuss some of the comparative themes that may be derived from this examination. It is based upon the work done for the two meetings of the research group, which were held in November 2001 and June 2002 at the UOC (Universitat Oberta de Catalunya) in Barcelona, and sponsored by IN3, the research centre of that university.

In Part II , a collection of national studies examines the law in this area, in each of the seven countries.

In Part III , we consider the most important themes of comparative law that arose during our discussions, with papers on Regulatory Techniques , Public and Private Regulation , Enforcement , The Role of Worker Representatives , Notice and Consent and Old and New Paradigms .

In Part IV , we conclude with a look at the comparative historical and philosophical context, with a discussion on The Conception of the Employee as a person in Western Law .

This introduction aims to set the scene by presenting a general discussion of the opportunities and threats, related to worker surveillance and to the processing of personal data about workers, that have arisen as a result of the introduction of new information technologies at the workplace. The different responses of the law to these opportunities and threats will then be considered in much greater detail in each of the national studies.

2.	Surveillance and the processing of personal data
From the outset, it is important to stress that some degree of surveillance and of processing of personal data is a necessary and normal part of almost any employment relationship. Employers need regular information in order to assess how the relationship is progressing: they need to know that the work for which they are paying is being done to the required standards; and they also need to ensure that the behaviour of an individual worker or group of workers is not likely to affect the smooth running of their organization. Nor is there anything new in this: one may suppose that human overseers and reports on the performance of individual workers have been around for as long as work has been done for the benefit of someone other than the worker him—or herself; even the use of machines for surveillance—such as time cards—is well-established. Employers may need to process a wide range of personal data about their employees. [3] Firstly , they will usually want information in order to assess an individual's suitability for a given job. Initial contact with candidates for employment may involve application letters and forms, CVs, recommendations, references, tests and interviews: together, these will usually result in the accumulation of a very considerable volume of personal data about each candidate. Moreover, because a candidate's professional capacity may often be conditioned by his or her personal circumstances, such data are likely to include information of a personal nature: in addition to a candidate's academic and professional qualifications and experience, employers may wish to check upon questions of health; they may require psychological tests; they may wish to know whether a candidate has a criminal record, and if so, to have all the details of it; and they may wish to make specific tests for alcohol and drugs use, and even for genetic disorders. Then, once a candidate is given a job, and throughout the employment relationship, employers will continue to collect data about each employee's suitability for the job: records of performance at work, along with updated information on matters such as training and health, may be important factors in the employer's decisions over how the relationship should develop. Secondly , employers may process personal data because they are obliged to do so. Some of these obligations may be direct requirements of the law, such as the collection of details on tax and social security payments. Others may be a mixture of direct and indirect requirements: for example, the collection of data on health and safety, accidents at work, disciplinary action and the implementation of anti-discrimination policies, may in some circumstances be specifically required by the law; but equally, employers may feel obliged to store such data so that they will be able to defend themselves should their organization at some time in the future be subject to a civil claim or criminal charge relating to these matters. Thirdly , the processing of personal data may be incidental but difficult to avoid in the day-to-day operation of the employment relationship. For example, the operation of laws on maternity rights, on the provision of facilities for trade union representatives and on taking time off for certain elected public offices, may result in the employer having information about the employee's family situation, union affiliation and political beliefs. And even the voluntary provision of benefits to workers may result in the incidental collection of personal data: this may for example include data on the state of employees' health (which may be required for medical services, medical insurance and pension plans); on their family situation (where childcare facilities are provided); and even on their religious beliefs (where an employee requires a special diet in the staff canteen). Similarly, personal and professional information may become difficult to separate where an employee gives the employer a personal reason in order to justify an absence from work or the rescheduling of a meeting. Surveillance of workers and the processing of workers' personal data may thus be perfectly reasonable and justifiable. But that is not to say that any and all forms of surveillance and data processing should be so considered: indeed, such practices must often be reviewed in the light of concerns for the privacy—or simply for the human dignity—of the worker. It is for this reason that some countries have established legal limits upon surveillance (for example, in respect of searches of employees' persons and property) and upon the processing of personal data (for example, in order to combat discrimination on the basis of sex, race and disability). The key question here—central to our research project—is the extent to which the widespread use of new information technologies at the workplace has changed the nature of surveillance and data processing: and thus the extent to which the law in this area might also change. Whether these changes may in fact be so great as to constitute a shift in the prevailing paradigm is a question discussed in the paper by Leonel Alvim and Roberto Fragale . [4] Certainly, the development of these technologies, just like the development of any new technology, may cause existing questions to be presented from new perspectives, and may thus provoke—or even require—the development of new legal solutions. It may also give rise to entirely new questions, in cases where the new technologies allow people to do things that were previously impossible or impracticable: again, this may provoke or require new solutions. [5] In the case of the use of information technologies for surveillance at work and for the processing of personal data about workers, we can see elements of both situations. Computers have allowed existing forms of surveillance and data processing to become more effective, and have allowed for the development of entirely new situations. As such, they have altered, sometimes quite significantly, the balance that each national legal system had previously established between the employers' interests in conducting such practices, and the protection of the privacy and dignity of workers. The actors in those legal systems are thus having both to re-examine long-standing questions and to consider new ones. In this respect, we may identify four important changes that have been brought about by the widespread use of information technologies in the workplace: a) It has become much easier to collect data and to conduct surveillance It was always possible for employers to use surveillance in order to collect large amounts of data about each and every one of their employees: but it was rarely practical for them to do so, as the sort of surveillance required to do this was labour-intensive and thus costly. Computer technologies have however created important new possibilities in this respect. To some extent, this is because work is increasingly centralised within the computers themselves. The processing and filing of records in electronic form has already replaced a great deal of paperwork; e-mail has in a very short space of time widely taken the place of letters, memos, phone calls and faxes; and the Internet has become a source of all kinds of information that would previously have been stored in bookshelves and libraries. Thus, in order to get a good idea of the activities of a particular employee, employers may no longer be obliged to go to that employee's own workplace, and to examine the specific place where the files are kept; nor must they intercept lots of different forms of communication; nor need they make enquiries (possibly at several different locations) about the reference sources that the employee has been consulting. All of this information may be readily available on the computer that the employee uses; and if this computer is networked, it may all be accessed from any place in the world, so employers may be able to find out all they want to know without even having to get up from their own computers. A huge volume of information is available, and not just the files, records and copies of communications that have deliberately been stored. Computers systems automatically store traffic records, which will include data on the time of transmission of every e-mail, along with the content of its 'subject' line, and the name of each person who receives it. They also keep records of incoming mails: so even employees who deliberately avoid making private use of their employer's communications facilities, in order not to risk the disclosure of personal information, may find that certain information is revealed anyway (for example, in the record of an e-mail received from an association or political party headed 'Your Subscription Details'; or in the record of an e-mail from a trade union headed 'Our Meeting Last Week'). Traffic records will also be made of every Web page that employees visit, and every file they download or send through the Internet: so employers may have access to any information that employees send or receive via "secure" Web sites, such as the contents of private web-mail, and bank details. Records may even be kept of the physical use that the employee makes of the computer: of every click of the mouse, and every touch of the keyboard. As we shall see below, such data may then be processed in order to produce detailed records of the speed and efficiency of individual workers. Furthermore, it may be impossible for employees ever to delete information in such a way that it is completely removed from the system: various "back-up" copies of all the data that passes through the computer system may be kept for an indefinite period. Servers may thus store the contents of long-deleted e-mails, and even record sentences that were written but deleted before the employee saved a good copy of the document. It may even be possible, despite the employees' best efforts to cover their tracks, to use the data kept on the system in order to reconstruct, step-by-step, each option selected as they navigated through a particular Web page. [6] These records of traffic, of computer use, and of deleted data, are collected and stored as part of the day-to-day operation of the computer system. Obviously, the priority of those who design, install and maintain computer systems is to create systems which are stable, where data does not get lost, and where processes are recorded so that problems can be dealt with. Software engineers may have little or no interest in altering the design of their products to take account of factors such as employee privacy—certainly, not unless the law obliges them to do so. The collection of such data is therefore often not the result of a deliberate decision to monitor employees. The data is all there anyway. All an employer has to decide—and it may be a temptation difficult to resist—is whether or not to use this readily-available data in order to check upon employees. b) Computers have altered the nature of data processing The processing of personal data about employees (whether this data came from surveillance or from any other source) was until recently subject to important physical limitations. Firstly , the storage of paper files may take up a great deal of space and require the purchase of infrastructure such as filing cabinets and folders, all of which may represent a very significant cost for the employer's organization. Such costs encouraged employers to limit the range of records they kept, as well as the volume of information within these records, and the length of time for which they were stored. Secondly , the maintenance of a large filing system could be expensive, and the retrieval of documents a relatively slow and complex procedure (to be done only by trained staff, and only in the physical location where the records were kept). And thirdly , the further processing of the data—for example going through the different files to compare entries and search for patterns—was possible, but would have involved so much meticulous (and highly boring) work in different filing systems (possibly located in different places), that it was not practical in anything but the most extraordinary of circumstances. In fact, the possibility of using the data in such a way may simply not have occurred to most employers. This situation has undergone a rapid and profound change. The use of computers means that there are now virtually no practical limits—in terms of cost and physical space—to the volume of information that may be stored, or the length of time for which it may be kept. All documents can easily be made available to anyone who the employer wishes to have access—along with powerful but easy-to-use search tools which enable non-specialist staff to find any and all relevant data, without ever having to leave their own workplace. And perhaps most significant of all, further processing of the data has become quick and easy to do. By cross-referencing (or "data-matching") information in different databases, data collected for one purpose may now easily be turned to other uses (so—to take a real example from Spain—an employer may use a list of names kept for the purposes of paying union membership fees, in order to identify those employees most likely to have taken part in strike action). Moreover, by comparing information about a particular worker held in different databases—which may include other records held by the employer, or indeed records held in a vast number of databases belonging to private and public organizations—employers may double-check on the veracity of the information they hold; and they may take many different pieces of personal data, none of which is particularly significant on its own, and use them to build a much more complex, detailed and intrusive psychological profile of individual employees: of their likes and dislikes; of their behaviour, character and religion; of their criminal record, and their appearances as a plaintiff or defendant in civil cases; of their family situation and sexuality; of their financial situation; and of their memberships and affiliations. Indeed, the use of data from outside the organization may allow employers to discover information about individuals the use of which would be highly questionable, or even unlawful: employees may, for example find details of crimes committed long ago that, under laws on the rehabilitation of offenders, are no longer part of that person's criminal record; they may find details of personal finances; and they may find information on the family situation, race, religion, politics and sexuality of an individual, the use of which may contravene anti-discrimination laws. [7] It was for these reasons that, already over a decade ago, the International Labour Office identified the multiple use of data as a very significant threat to workers' privacy. [8] And of course, this already vulnerable position may be exacerbated where the personal data is inaccurate or out of date, or where it is perfectly accurate but has become misleading because of being "decontextualized"—for example, where data on employee absences become detached from the explanations for those absences, or where data recording a minor disciplinary offence fails to add that the offence took place many years ago and has not been repeated (such minor offences used to have a "natural" life span, in that they existed only as long as the parties involved remembered them, but where details of such offences are stored on computers, they may become a permanent blot on that worker's record). c) Computers make intensive surveillance practical The processing capacity of computers also allows them to be used as a means of intensive surveillance. Although this type of surveillance was always theoretically possible without computers, it could only have been done very rarely—if at all—because of the time and money that it would have required to engage an adequate number of supervisors to monitor the correspondence of all workers, and to sift through mountains of personnel files. Now, however, the use of computers has brought down to much more manageable proportions the amount of work that is required in order to do just that. Huge amounts of data may be collected, and then in seconds organized and presented in an easily-understood format—such as statistics, graphs and tables—which allows an employer quickly and easily to make an evaluation of it. So, for example, the processing and presentation of traffic records may permit employers to have a detailed but easily-digested picture of the use that their employees make of the e-mail and Internet facilities; and the processing and presentation of records of physical use may allow employers have a detailed picture of the speed and accuracy with which each employee works, and of the amount of time during the day that each spends on pauses and breaks. [9] Other records may be filtered: that is, the computer itself may make the first examination of a large body of data, and reduce this to a manageable number of records that may merit further attention. The computer can search for certain words: obscenities may indicate inappropriate behaviour; words such as "personal" and "confidential" may indicate the private use of the employer's facilities; words such as "CV" or "application" that an employee is trying to find another job; and keywords relating to particular company secrets (such as the ingredients of a secret recipe or a list of clients) may indicate alarming carelessness, or an intentional leak. Similarly, the presence of "exe" files may indicate the use of unauthorized software on the system; visits to particular web addresses may indicate whether employees have been surfing for business or pleasure; and traffic records of e-mails with multiple recipients may indicate the sending of private jokes. According to the advertisements of some software producers, computer filters may even identify files containing images of nudity, in order to allow the employer to prevent the circulation of pornography. As filtering becomes more effective, the increasingly intensive surveillance of employees becomes both possible and practical. In this respect, and given the not infrequent references to "Big Brother", we might note that almost any employer who has a computer system—even those in relatively small organizations—is now much better-equipped to conduct surveillance than were the Thought Police in 1984 : at the beginning of that novel, Orwell describes how the "telescreen", the principal means of suveillance, allowed the state authorities to see and hear almost everything that people did. But unlike modern employers, if the Oceanan authorities did not wish to risk missing something, they had to keep watching all the time... d) Computers make surveillance imperceptible Before the advent of computers, surveillance at work almost always involved a physical intrusion: a supervisor looking over the employees' shoulders (or more recently, a microphone or camera being pointed at them); or a physical search of the employee's place of work or locker, of their private property (such as bags), or even of their person. Physical interception was also needed in order to intercept employees' communications: it was often obvious if mail had been opened, and even phone tapping could sometimes be noticed. Now, however, employers can access any data stored in a "stand-alone" computer or on a networked system without the employees being aware: indeed, on a networked system, employers can even arrange to have an exact copy of a particular employee's screen reproduced upon theirs, so they can follow every move that the employee makes, as he or she makes it. This feature of computer surveillance has two important consequences. The first is that, being less easy to detect, surveillance is less easy to control. Even if workers have the industrial power—and perhaps the legal right—to object to particular forms of surveillance, they clearly cannot do so unless they are aware that it is going on. This point also applies to all forms of data processing: any legal rights or opportunities that employees may have to control the processing of their personal data are clearly dependent on their being aware that such processing is being done. The second consequence relates to the way in which the law conceives of—and protects employees against—over-intrusive surveillance. Where such legal protection exists, it tends to focus on the physical intrusion into the employee's private sphere, such as that which may occur when an employee's private property is searched, or when employees are subjected to body searches. The possibility of over-intrusive searches without a physical intrusion was not considered, probably because the question simply never arose. However, now that computers allow intrusive, non-physical searching, a new perspective has been put upon the issue, and so in each legal system it must be decided whether the law should continue to be limited to physical searches, or whether non-physical searches may in some cases be so intrusive that they too should be covered by the law. [10] In each of the four areas set out above, we can see that the use of information technologies has indeed created important new opportunities for employers, and important new threats for employees. It would seem from our study of seven different countries that at least some employers have not been slow to take up these new opportunities, so the question of the potential threats to employees will become increasingly important, and the law will increasingly have to deal with the question of how and where to set a balance between the conflicting interests involved. In the remaining three sections of this introduction, we shall look in more detail at the nature of the new threats to employees; at the reasons why employers may wish to take up the opportunities to conduct more efficient—and more intrusive—surveillance and data processing; and at the nature of the balance to be drawn.

Employee concerns: privacy

Most of the threats to employees in this area relate to the effect that the new opportunities for surveillance and data processing may have upon employees' rights to, or reasonable expectations of, privacy. [11] "Privacy" in this context is not a precise term—it is a bundle of not very clearly-defined rights and expectations, according to which individuals should have some degree of intimacy, secrecy, dignity, autonomy or independence; and perhaps should enjoy a right to be left alone, to control what others know about them, or simply to be themselves. But irrespective of the difficulties in defining the concept, privacy is of no small importance, both as an influential idea upon society as a whole, and in the law itself: privacy, or elements of privacy, are protected in many countries—certainly in all the countries looked at in this study—not just in legislation and caselaw, but in law codes of historic standing, in binding treaties on human rights, and even in constitutions. The main focus of privacy rights will typically be the restraint of the power of the State, but they may also apply (albeit perhaps to a lesser degree) to relations between private parties such as employers and employees. In both cases, however, the existence of other public interests or other private rights and expectations may reduce, sometimes very substantially, the scope of these privacy rights.

There is in fact a good case to be made for the strong application of privacy rights to the employment relationship. The easy access that employers now have to technologies that are potentially very intrusive, coupled with the economic and social circumstances that usually result in a huge disparity in bargaining strength between the parties to the employment relationship, have enabled some employers to reach a position where they are capable of limiting the freedoms of those individuals who work for them to an extent similar to that which could arise from the unrestrained exercise of public authority, the fear of which was probably the very reason for the development of privacy laws. [12]

It is however no less clear that any privacy rights which apply to the employment relationship will have to be balanced against the legitimate and reasonable needs of employers. As we have seen above, there may be many instances where employers may need to check on the activities of their employees, and to process personal data about them. Moreover, the employee—just as any individual who makes a contract or who joins almost any sort of organization or group—agrees to act in a certain way and to accept certain actions of others: and thus explicitly or implicitly agrees to constraints being imposed upon his or her freedoms as an individual. [13] It may be argued that these freedoms are not lost, because the agreement is voluntary: individuals are not obliged to make a contract or to join an organization; and even if they have done so, they may subsequently choose to end the agreement and regain their freedoms. The question here is thus the extent to which individuals can and should be able to relinquish their privacy rights as part of the agreement by which they enter into and maintain an employment relationship. As Matthew W Finkin's paper shows, [14] the law in different countries has arrived at very different answers. In some legal systems, particular emphasis is placed on the freedom of private parties to make agreements between themselves, so state intervention in order to protect minimum standards of privacy at work may be very limited. [15] Here, although it is true that individual freedoms are protected—in the sense that employees are not obliged to take any particular job, and are free to leave a job if they feel that the employer's practices intrude unacceptably into their private lives—this protection will only be meaningful if it is in practice not overly difficult for employees to leave their jobs. In other words, unless employees can with reasonable ease either find an acceptable alternative job with an employer whose practices are less intrusive, or do without employment altogether, then they may simply have to put up with the surveillance and data processing done by their present employer. By contrast, in other legal systems it is considered that there is a minimum level of privacy rights for individuals that is fundamental and cannot be done away with. This is part of a general concept of citizen's rights at the workplace, as encapsulated by the much-repeated argument that individuals should not lose their rights as citizens as they walk through the door into their workplace. This concept was popularised by the French Government in the early 1980s, and is now an established part of the discussion of labour law throughout the European Union. There may nevertheless be significant differences, even between EU Member States, as to the extent and effect of this minimum level of privacy protection. [16]

Whatever the extent to which privacy is protected, privacy rights tend not to be relied on directly by workers, but rather to work by influencing the judicial interpretation of other laws. That is, the privacy rights enshrined in the lofty heights of law codes, constitutions and human rights treaties are rarely relied on directly, but are used to influence the assessment of what is reasonable conduct by employers, for example in the application of legislation on the fairness and propriety of disciplinary action and dismissals, and in the interpretation of the general duty of good faith or loyalty that may be implied as a term of the contract of employment. In this respect, the paper by Hans-Joachim Reinhard [17] describes the specific means by which privacy laws are enforced, and the paper by Christophe Vigneau [18] considers the nature of the regulatory techniques that are used.

Within the European Union, however, there is now a specific vehicle for the application of privacy rights in matters of surveillance and data processing: Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data . The recitals to the Directive stress the importance of the protection of the fundamental rights and freedoms of individuals, with particular emphasis on the right to privacy. [19] In fact, concerns about the effects of the computer processing of personal data have, since at least the early 1970s, given rise to debates at various levels of government within Europe, on whether new legislation was necessary in order to protect the privacy of individual data subjects from the new threats posed by such processing. Some of these debates resulted in the development of data protection laws at national and regional level. Then, from the 1980s onwards, governments throughout the world were encouraged to pass legislation in this area: a number of different norms—guidelines, recommendations, codes and conventions—were issued by the Organization for Economic Cooperation and Development, the Council of Europe, the International Labour Office and the United Nations. [20] Although the substantive terms are broadly similar in all of these international norms (including Directive 95/46/EC), the Directive differs from the others in that it establishes legally-binding minimum standards of data protection that must be respected in all of the Member States involved, and indeed in any place in the world where personal data covered by the Directive are sent. [21] In addition, it has a very wide scope of application: "personal data" is defined as any information relating to a person who is identified or identifiable, and "processing" as any operation or set of operations performed upon such data. [22] It is therefore clear that most forms of surveillance—certainly all surveillance activities involving computers—fall within the scope of the Directive.

This situation may seem somewhat strange: the surveillance of workers tends to cause much more popular concern than the processing of their personal data, and yet the latter is the focus of the protection of the law, surveillance being subsumed as a mere sub-category of processing. It may be that it was not widely foreseen that the Directive would also cover almost all forms of surveillance—certainly, there seems to have been no small degree of resistance to this idea, and this may explain why the independent committee of experts established under the Directive felt obliged to stress the point. In its Opinion 8/2001 it states: "There should no longer be any doubt that data protection requirements apply to the monitoring and surveillance of workers whether in terms of email use, Internet access, video cameras or location data". [23]

Directive 95/46/EC establishes a number of general principles that must be followed in all processing of personal data; and these may briefly be summarized as follows:

1. The processing of personal data must be fair and lawful. As one element of this "lawfulness" the directive establishes a list of legitimate reasons for processing, at least one of which must apply each time personal data are processed. An additional and more-demanding list applies if the personal data are "sensitive" (that is, if they refer to the subject's race, religion, politics, trade union membership, health or sex life).

2. Personal data must be purpose-specific. All data processors must state the reason why they are collecting particular data, and they must not then use that data for any other, incompatible purpose. They must also ensure that the data are adequate, relevant and not excessive in relation to the purpose; and that they do not keep the data for any longer than is necessary for the purpose.

3. Personal data must be accurate and (if necessary) up-to-date.

4. Personal data must be stored securely.

5. The transfer of personal data to other parties and to places outside of the territories where the Directive applies is subject to limitations, conditions and procedures.

6. Enforcement . Each Member State must have a special public authority responsible for enforcing the law, and all data subjects are given rights in respect of data about themselves (a right of access to the data, a right to object to certain uses, and a right to compensation for the effects of unlawful processing). In order to promote enforcement, data processors are required to supply certain information about the data and the processing, to the public authority and to each individual data subject.

By establishing these legally-binding principles, the Directive gives concrete form to the privacy rights of employees who are faced with computer surveillance and the processing of their personal data, both in terms of the definition of these rights, and in terms of the means of enforcement, which, as Claudia Faleri [24] discusses in her paper, are an innovative mixture of public and private law mechanisms. Of course, as with all privacy rights, these principles are not absolute, and so may be over-ridden in certain circumstances: but it does seem that the general approach throughout the European Union will now favour the preservation of a certain minimum level of privacy protection in this area, even within employment relationships. Indeed, the Opinion of the independent committee of experts concludes:

"The legitimate interests of the employer justify certain limitations to the privacy of individuals at the workplace. Sometimes it is the law or the interests of others which impose these limitations. However, no business interest may ever prevail on the principles [...] contained in Directive 95/46/EC. Workers can always object to the processing when it is susceptible of unjustifiably overriding his/her fundamental rights and freedoms."

Nonetheless, significant difficulties remain. One is that the Directive, and indeed all of the international standards which establish similar rules, date from a time when the main threat that computers posed to the privacy of individuals appeared to be the use, mainly or exclusively by the state, of large, mainframe computers: the small but powerful computer systems that are now widely used by employers throughout the world, simply did not exist. And although the general principles of data protection were deliberately phrased in broad terms that were designed to survive the rapid and unpredictable development of computing, the techniques of enforcement may not have been so adaptable. A public authority and individuals armed with legally-enforceable rights may be an effective way of dealing with the threat from a small number of large computers, but will almost certainly be much less effective against a large number of small ones. And a further difficulty is that the definitions are still very general: they are not perhaps as imprecise and difficult to apply as some of the formulations of privacy, but they are nonetheless open to significant differences of interpretation, for example as to what is necessary, what is fair, and what data are relevant, adequate and not excessive.

4.	Employers' reasons for using new forms of surveillance and data processing
As we have seen, there are a number of long-standing reasons why employers may wish to conduct surveillance upon their employees, and why they may wish to process personal data about them. Few new reasons seem to have been given by employers for having taken up the new opportunities that computers provide for enhanced data processing, but a large number of new reasons have been given for the use of new surveillance technologies, [25] a difference that may possibly be explained by the higher level of public concern that is usually expressed over questions of surveillance. To consider these reasons in more detail: a) The protection of resources One reason given for computer surveillance is the need for employers to control the use of their resources. In some respects, the use of the employer's computer equipment for the employees' own private purposes may give rise to questions similar to those which have already arisen over the private use of the employer's telephone: it is for the employer to decide whether and to what extent employees may make private use of such facilities, and in practice it would seem that many employers are content to tolerate a reasonable level of private use. Some may in fact encourage the private use of computers, in order to improve their employees' skills (or perhaps because the cost and inconvenience of an employee spending some minutes using an on-line service may be substantially less than that of the employee taking time off work to go in person to a shop, bank or travel agent). Other employers may actively discourage private use, although in some legal systems a blanket ban on private communications may be considered unreasonable: for example, in circumstances where employees need urgently to contact their families. [26] There are however important differences between the use of the telephone and the use of the computer. Although the cost of using computer facilities may in itself be much less than the cost of making a phone call, particularly where long-distance communications are involved, e-mails, and above all the Web, provide employees with much greater opportunities than ever before to spend time at the workplace on activities not related to work. That is, the thing that employers may now be seeking to protect is not the actual cost of using the equipment, but rather the loss of working time; and whereas the cost of private phone calls may quickly and easily be quantified—simply by looking at an itemized bill—it may be that more-effective surveillance is needed in order to quantify the cost of the private use of computer facilities. This is all the more so because the private use of computers may be difficult to detect: anyone within hearing distance can usually tell whether an employee is making a business call or chatting to a friend, but the outward appearance of an employee at a computer may be the same whether they are working hard on the company accounts or searching the Web for pictures of Mickey Mouse. For this very reason, there may be social pressures on workers to limit their private use of the telephone—but not their private use of the computer—when there are colleagues nearby. Nor are concerns over working time limited to that lost by those employees who use the computer for private purposes: e-mail systems may make it easy to send private messages and jokes to large numbers of colleagues, who may then themselves lose time in reading those e-mails, or simply in sorting them from business communications. b) Operational reasons Employers may also have operational reasons for taking up the new opportunities to conduct surveillance. The correct and efficient operation of the employer's computer system may be put at risk by the actions of employees. Many such risks relate to damage that is entirely accidental or unintentional, such as the accidental deletion of a program file, or the unintentional introduction of a virus: although there may of course be wide scope for a knowledgeable employee quite deliberately to cause very considerable damage to the computer system, and thus in turn to cause significant financial losses. The use of computers for private purposes may compound this problem, as employees may use them in "unofficial" or unexpected ways that may give rise to problems in the operation of the system (for example, by the introduction of a program that causes instability within the system). Moreover, the transmission and storage of private data may result in a significant reduction in the speed and capacity of the system (a problem which seems unlikely to be solved simply by increasing that capacity, because the private data which employees send and store—such as music and video clips—is ever-more sophisticated, and takes up ever-more memory). Other operational reasons relate to the need to keep clear records of business dealings, such as those with customers and suppliers: employers may wish to monitor employee communications in order to ensure that binding agreements with third parties are made only through the established and official procedures. They may also wish to access the information that employees have stored in their computers, for example, in order to check the files of a temporarily-absent colleague for business information that cannot be found elsewhere, or to find out whether there are any matters (such as meetings or delivery dates) that need attention before that employee's return. Still further operational reasons may relate to a need—or a desire—to assess the performance of employees. We have already noted how the data on traffic and use, which is collected as part of the functioning of the computer system itself, may be further processed for the purposes of evaluating employees; and of course further data may be collected with the specific intention of making evaluations, such as ensuring that employees are meeting the standards required of them. Some of these standards may be external, such as a legal requirement to provide customers with certain information, or a professional requirement that the work of junior staff is checked by a more-experienced colleague (as may be the case with junior lawyers). Other standards may be set by employers themselves: surveillance for the purposes of training and customer services may aim to ensure that employees reach the desired standards in their dealings with customers and suppliers, and having reached these standards, that they maintain them. This may relate to general concerns over politeness and helpfulness, or it may relate to specific concerns, such as customer complaints, or checks on whether the employee correctly recites the company's standard sales pitch. c) Controlling the flow of information Thirdly, given the ease with which computers allow individual employees to communicate with others, both inside and outside the employers' organization, a large number of new justifications for computer surveillance have been put forward that relate to the control of the flow of information to, from and within organizations. The protection of confidential information (such as company strategies and "know-how"; lists of customers; and potentially embarrassing secrets) may be a major concern, not just because of the opportunities that individual employees may have to disclose such information, but also because of the ease with which an e-mail may be sent to the wrong address, or forwarded and re-forwarded until it reaches someone who does not know or does not care that the information is confidential. The spread of such data could prejudice a competitive advantage that the organization enjoys; it could cause embarrassment and affect the organization's public image; and it could even be in breach of legal obligations that require the secure storage of certain data (such as personal data and information likely to affect share prices). Even purely internal e-mails may be of concern: as we have seen, messages that have apparently been deleted may in fact remain within the computer system, and so in civil cases involving the employer, stored messages may be subject to court orders for disclosure, and may thus reveal damaging facts about the knowledge and intentions of individuals within the organization. Employers may also be anxious to preserve their reputation at large, and so they may for example wish to use new surveillance technologies in order to prevent individual employees from expressing in public opinions that may then be associated with the organization as a whole. Even where an employee insists that an opinion is purely personal, employers may nonetheless feel that their name is being associated with it (for example, where the e-mail address given by the employee also identifies the employer: telltale.tom@bigcompany.com ). Protecting a reputation may also be one of the reasons why many employers wish to conduct computer surveillance aimed at preventing the introduction, circulation and distribution of pornographic images. [27] The management of the employment relation is another reason for concern over the flow of information. Computers may make it easier than ever for employees to circulate crass jokes, pornography, extremist opinions and insulting comments about other workers: these may be sent only to particular "victims", or they may easily be circulated very widely both inside and outside the organization. Whatever the case, certain employees may feel insulted or humiliated, and this may give rise to a difficult or unpleasant atmosphere at work (quite apart from the possibility of legal liabilities, as discussed below). Similarly, it may now be very easy to circulate communications that are critical of the employer. Clearly there is a wide range of possibilities here: criticism may be insulting or constructive; it may be sent to colleagues within the organization, or it may be a public declaration; and it may or may not be done as part of a dispute between employees and their employer, or as part of the activities of a worker representative or trade union. Depending upon the circumstances and upon their own attitudes, employers may wish to monitor employee communications in order to control some or all of these forms of criticism. d) Civil and criminal liability Lastly, some employers cite their concerns that the use of computers may open them to civil and even criminal liability, as a reason for introducing computer surveillance. It has been argued that e-mails appear to be less formal than communications on paper, and thus that employees are not as careful with what they write in e-mails as they are with the contents of paper documents. In some cases, such carelessness could give rise to civil liabilities for employers: for example, in respect of ill-considered professional advice or poorly-made contracts. Where employees spread untruthful information about other parties, such as rival companies, this may lead to their employer being liable for defamation; and where certain employees use the computer communications facilities to harass others, the law may in some circumstances hold the employer responsible. Moreover, if it is easy to introduce data into the employer's computer system, and given the ready availability on the Internet of unauthorised copies of documents, music and video, employers may be concerned about the possibility of their being liable for failing to respect a copyright, or (where computer software is so protected) a patent. Some employers even cite the possibility that certain use of the computer may give rise to criminal liabilities, for example, in relation to the storage or circulation of child pornography or documents in which extremist opinions are expressed. It would however seem unlikely that an employer who did not participate in the employee's actions, or at least know about them, would be held criminally liable, so this issue may in fact be more related to the general concerns that employers may have for their reputation.

5.	A question of balance
The application of the law to cases of computer surveillance at work and to cases of the computer processing of personal data about employees—whether this involves specific legal rules, or general principles set out in constitutions, treaties and international norms—almost always centres on the establishment of a balance between the rights, interests and expectations of the employer on one hand and of the employee on the other. The reasons given by employers for surveillance and for the processing of personal data often appear to be pressing and pragmatic, and thus more important than the defence of a somewhat vaguely-defined concept of employee privacy. But because the use of information technologies in this area has a very significant potential to prejudice fundamental rights to privacy, it is surely correct to consider employers' reasons very carefully, and to question how far they actually need to use these new techniques, and how far they merely find it convenient to do so. That is, given that new technologies have allowed surveillance and data processing to become both more effective and more intrusive than ever before, it is surely right to examine the extent to which these new technologies are actually necessary to deal with new problems, and how far they are being used to deal with problems that already existed and that were already dealt with using less-intrusive means. Intensive surveillance and intrusive data processing is now very easy to do, and there are suggestions that this is already leading to what has been termed "a fundamental switch away from the reactive policing of incidents to the proactive policing and management of risks". [28] Again, one may wonder whether employers' attitudes and policies are changing because they need to, or because they can. Certainly, the introduction of ever-more intrusive technologies does not seem to be inevitable—and given the effect that these may have upon employees, the law may indeed decide that beyond a certain point, the use of such technologies should not be acceptable. Looking closer at the reasons cited by employers for taking up the new opportunities for surveillance, it would appear that some of the effects of the introduction of computers into the workplace may not be as significant as those employers claim (or imply). Thus, in response to the concerns expressed over the circulation and display of legal forms of pornography, it should be noted that such images were never particularly difficult to come across in certain workplaces, in the form of magazines, posters and calendars. That is not to say that it is right or wrong for an employee to keep or display such images: the question is rather whether the ways in which employers previously dealt with this problem are still adequate, or whether the nature of the problem has changed in such a significant way that it justifies a new solution that may also involve a significant new intrusion upon the privacy of employees. If, for example, an employer did not previously conduct regular searches every employee's workplace and locker, is it acceptable that he or she now conducts regular searches every employee's disk space? A similar perspective may be taken in response to the concerns over confidentiality, the protection of the employer's reputation, public criticism, personnel management and the possibility of civil and criminal liability. If these concerns relate to harm that is accidental or not intended by the employee, then it may well be more effective and more appropriate to deal with them by improving staff training and the design of the computer system itself, rather than by increasing levels of surveillance. And where the concerns relate to intentional harm—for example, where an employee deliberately leaks information, causes public embarrassment, or harasses others—these may of course be very serious matters for the employer, but they are not new problems, so again the question is whether and to what extent the existing ways of dealing with such problems have now become inadequate, and thus whether and to what extent new solutions that prejudice workers' privacy may be justified. Moreover, any attempt to deal with such problems that relates only to one particular form of communication—such as the surveillance and blocking of e-mails—would seem to be addressing one of the symptoms of such problems, rather than their causes, and as such unlikely in itself to provide an adequate solution. By contrast, some of the reasons for using new surveillance technologies clearly do relate to new problems: for example, protecting the computer system against viruses and overloading; dealing with employees wasting working time by sending e-mails and surfing the Web; and keeping and retrieving computerized business records. But even here, one may question the extent to which these new problems may justify some of the possible responses. The operation of computer systems may be protected automatically—by anti-virus software and by configurations that do not allow for the storage or installation of certain forms of data—so solutions that involve intrusions upon the privacy of employees may not be necessary. Time-wasting on computers may be addressed by clear policies on private use, and be monitored through traffic records, without requiring any examination of the contents of particular messages or web pages. And employees can be asked to keep adequate computer records of all business activities on disk space that is available to others (and even if the need arises to examine the employee's own disk space in his or her absence, this may be done without examining the entire contents of that space). Other forms of computer surveillance may inevitably—and perhaps quite deliberately—be intrusive, and for that reason they may be more controversial. For example, the processing of records on computer use in order to assess employee performance may give rise to questions similar to those arising in relation to the intensive monitoring of telephonists in call centres: although employers tend to attempt to justify such monitoring with reference to policies on training and "customer care", the suspicion must be that these practices are in fact much more related to policies of intensive discipline and control. Indeed, concerns have been expressed about the human and business costs of the resultant high-stress, low-trust workplaces. Similarly, the interception of messages in order to control criticism of the employer and to limit the activities of worker representatives may be highly controversial and raise questions of free speech and free trade unionism. Whether and to what extent the widespread use of computers at the workplace justifies the use by the employer of more-effective and more-intensive forms of surveillance and data processing will be an issue that will have to be decided in each country, according to national traditions and according to the precise nature of the changes in the problems faced by employers, the effectiveness of the new technologies, and the actual or possible consequences for employees. An additional factor must be added to these considerations. As discussed by Roberto Fragale and Mark Jeffery , [29] in all the legal systems studied in this project, the question of whether or not the employee has been notified of the surveillance or data processing, and of whether or not he or she has then consented to it, may exert an important influence upon any assessment of the extent to which the employer's practices may intrude upon the privacy of individual workers. Clearly, notice and consent will affect the extent to which employees may reasonably expect that their privacy will be respected by the employer: if they have been warned in an adequate manner, then any such expectation may be diminished. However, this then leaves the more-general issue of the extent to which individual rights and freedoms may be relinquished as part of the employment relationship: this includes the question of the extent to which an employee's consent may be taken as valid, given the inequalities of the parties to an employment relationship; and the question of the extent to which there may be some fundamental rights and freedoms that the law simply does not allow individuals to relinquish. Thus in all cases—whether we are dealing with surveillance or data processing (or indeed whether the law takes them to be the same thing); whether the question of privacy arises in a case on the propriety of disciplinary action or dismissal, on a question of contractual good faith, on the application of data processing laws, or on any other matter; whether or not there has been notice and consent; and whether the legal system establishes the irreducible minimum of privacy protection at a higher or lower level—the matter usually boils down to a question of what is or is not reasonable for employers to do in the particular circumstances of the particular case. So although different countries may have very different ideas of where the balance between the employers' and the employees' interests should be set, in all countries, those who decide these matters—be they data protection authorities, arbiters, tribunals or judges—will usually have to examine all of the circumstances in each individual case in order to apply the law. The resulting case-by-case approach may be inevitable wherever general principles such as those on privacy and data processing are applied to situations that may be very complex and that may vary greatly from one case to another. [30] In employment, the relevant circumstances may differ not only from employer to employer, but also amongst the employees of the same employer: the degree of surveillance and the nature of the data processing that an employer might reasonably wish to undertake may differ significantly according to the responsibilities and position of the employees. It may for example be reasonable for surveillance and data processing to be more intensive in respect of an employee who has access to sensitive information than in respect of a co-worker in the same office who does not. This approach does however have important disadvantages when compared with more-prescriptive forms of regulation. In none of the countries that we studied do employers and workers have clear guidelines on the extent to which the law will accept computer surveillance and the processing of personal data at work, and this situation may continue unless and until a sufficient number of cases have been decided, at a sufficiently high level in the hierarchy of courts, to create some predictability in the way that the general legal principles should be interpreted and applied. In the mean time, the law may do no more than establish general principles that, even with the best possible will amongst the parties involved, are still open to very significant differences in interpretation. It may provide scant help for an employer or a worker who wishes to know whether or not a particular instance of surveillance or data processing is lawful. Nor can it safely be assumed that this is only a temporary problem, and that before too long national caselaw will develop sufficiently to facilitate the application of the general principles: in all of these countries, there have been remarkably few judicial decisions, certainly at appellate level. It is true that there have usually been a number of cases that have made the national headlines—perhaps because of the novelty value of cases involving new technologies—but nowhere are there significant numbers of high-level decisions. The reasons for this may be that the parties involved do not see information technology and workers' privacy as a priority. They may not have given much consideration to the issues; they may not care; or—perhaps worst of all—they may care about the issues but feel that there is nothing practical that can be done. [31] Alternatively, it may be that all the parties involved—employers, workers, their representatives and lawyers, and even national data protection authorities—prefer to take an informal approach to regulation in this area, either because they prefer to resolve matters as quickly, quietly and amicably as possible, or because the law seems too uncertain to be relied upon in justifying or challenging contentious forms of surveillance and data processing. Given then that the general principles of the law remain unhelpfully vague, and that caselaw may not in the foreseeable future come to the rescue, it may be appropriate to consider other forms of regulation. In some Member States of the European Union, the data protection authorities have drawn up guidelines to assist employers and workers. However, the experience of the regulator in the United Kingdom is that concise guidance may still be too general to be of use in the application of the law to specific cases, and detailed guidance may result in documents that the parties fail to read because they consider them long-winded and unwieldy. Moreover, there may also be questions over the legal status of such guidance, the extent to which it is binding, and the position if an employer should decide not to follow it. A better option, as discussed by Javier Thibault [32] could be the development of the role of worker representatives in this area. All members of our research group agreed that the creation of collective regulations was desirable, in that they could be used to adapt the general principles of the law to the particular circumstances and needs of individual organisations or even individual workplaces, and thus provide some degree of certainty for employers and workers alike. They could also raise awareness of the issues involved and so encourage greater care on both sides. However, all agreed that there were no strong grounds for optimism over the potential for development of such regulations: in addition to the problem that this area does not seem to be a priority for employers, employees and the representatives of both, much depends upon the scope and potential for development of effective collective bargaining in each country. This may in practice be limited largely to the public (or until-recently-public) sector: elsewhere, blue-collar workers are more likely to be unionised, but less likely to work with computers; and white-collar workers, particularly in administration and services, are more likely to work with computers, but less likely to be unionised. Although the Social Partners at European Union level are at the time of writing discussing the application of EU data processing laws to employment, the problem remains that, even if they manage to reach an agreement (and they have a somewhat patchy track record), this is likely to be couched in very general terms, and so will not resolve the difficulties in applying the law to individual cases (and, as with previous such agreements it would probably sit uneasily with the structures of law and collective bargaining within the Member States, and so again be unlikely to result in clear and binding rules). Perhaps the best one can hope for is that the Social Partners' discussions, and any eventual agreement, will raise awareness, and thus encourage bargaining at levels where the parties are able to go into details. The use and potential of computers in the surveillance of workers and the processing of their personal data means that difficult questions will increasingly be faced in all countries. There are no easy answers; and national solutions, as they develop, will in all probability reflect national traditions of the rights of the individual and of labour law. Differences between countries—some of them very substantial—will remain. Nevertheless, many of the social and legal issues raised are the same in all countries, and so—given the importance of Information Technology and Workers' Privacy —it is an interesting and hopefully useful exercise to examine and compare the way in which other legal systems are dealing with these. We hope that with this collection of papers we may make our own modest contribution to this process.

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