Privacy law. I Spy

• Author: Matt Reynolds.
• Pages: 21-22

PRIVACY LAW

I Spy

As more companies surveil

workers at home, do laws

do enough to protect privacy?

BY MATT REYNOLDS

When demand for employ-

ee monitoring technol-

ogy soared as millions

moved from the of ce

to remote work during the coronavirus

pandemic, class action lawyer Benjamin

F. Johns took note.

His  rm, Chimicles Schwartz Kriner

& Donaldson-Smith, announced in

October a class action investigation into

Hubstaff , one of several companies of-

fering tech that can monitor employees

inside their homes. Dubbed “bossware”

or “tattleware ,” some of these monitor-

ing programs can track websites visited,

log keystrokes, take screenshots or even

record video and audio.

“When everyone went remote, it

heightened the concerns about privacy.

And while employees do have to give up

some of their rights, just by virtue of the

employer-employee relationship, they

don’t give up all their privacy rights,”

Johns says.

Hubstaff did not respond to a re-

quest for comment on the investigation,

and the law  rm has not announced

any legal action. But it is still looking

into whether the technology might be

falling afoul of the Illinois Biometric

Information Privacy Act . The 2008 law

bars private companies from collecting

workers’ retina or iris scans,  nger-

prints, voiceprints, facial geometry or

DNA without noti cation and explic-

it consent.

As remote work becomes a per-

manent reality for more Americans,

blurring the line between the of ce

and the home, businesses are using

employee monitoring services to keep

tabs on workers. Attorneys like Johns

are eager to test the technology against

existing laws. But some legal experts

and privacy advocates, alarmed by the

tech’s increasing popularity, believe

policymakers need to rethink state and

federal laws.

“The phrases ‘bossware’ and ‘tat-

tleware’ imply a very intrusive kind

of surveillance of what the worker is

doing,” says Matt Scherer, a lawyer who

specializes in digital worker privacy at

the Center for Democracy and Technol-

ogy . “The law has dragged far behind.”

After the COVID-19 pandemic was

declared in March 2020, the demand

for monitoring technology—with names

such as Time Doctor and StaffCop —

surged. And by the second year of the

pandemic, 60% of companies surveyed

were using the tech, double the share

of early 2020, according to Gartner,

a technology research and consult-

ing company.

Makers of the software resist the

notion it is designed to spy on workers.

Elizabeth Harz, CEO of Awareness

Technologies , which makes the mon-

itoring software InterGuard , says it

helps companies protect their data and

track hours to make sure their workers

aren’t burning out. There is the poten-

tial for managers to abuse monitoring

tech, Harz concedes. But while some

programs use video and audio record-

ing, InterGuard does not, although it

can record screenshots. “What’s differ-

ent now is we’re talking about people’s

homes,” Harz says. “Managers don’t

want to see somebody’s child in a home

of ce. Managers just want to know that

National Pulse | PRIVACY LAW

Photo illustration by Sara Wadford/Shutterstock

ABA JOURNAL | APRIL–MAY 2022

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