Privacy or Paycheck: Protecting Workers Against Surveillance
COVID-19 changed how the world “works.” Ordered out of offices, workers under quarantine set up shop at home and, for many, the change will outlast the pandemic. Work-from-home is here to stay. Even workers who are now returning to “normal” office life will not be returning to the same workplaces they left in March.
As offices begin to reopen, employers are instituting safety measures that could permanently change workplace culture.
The future of work in a post-COVID world is still taking shape, but whether at home or at the office, worker privacy is poised to become a thing of the past.
Companies reopening for in-person work are rolling out employee monitoring systems using wearable technology, video surveillance, and mobile-tracking apps to contain the spread of the virus.
COVID-19 has increased the surveillance power of employers, and privacy advocates warn that technologies adopted during the pandemic could “normalise” aggressive workplace surveillance for years to come.
Technologies adopted during the pandemic could “normalise” aggressive workplace surveillance for years to come
Yet, for many workers, particularly workers in the gig economy, constant surveillance has been the norm for years. Examining how the pandemic has further entrenched a system in which work is mediated, monitored, analysed, and optimised by algorithms—and confronting the position of workers within that system—demonstrates that protecting the digital rights of workers requires more than protecting their data. It requires addressing the imbalance of power between employers and the workers trying to scratch a living out of an algorithm.
The lines between work and non-work have bled together over the past few decades. As platforms and employers increasingly rely on algorithms and monitoring tools to manage workers, widespread “datafication” has transformed the relationship between workers and management so that “an individual employee becomes a score on a manager’s dashboard, an upward or downward trajectory, a traceable history of tasks performed, or a log file on a company’s server.”
This data is valuable to employers, and workers produce it all the time—even while sleeping, workers have productive potential
This data is valuable to employers, and workers produce it all the time—even while sleeping, workers have productive potential. Professor Peter Fleming, writing on contemporary management ideology, warns, “ominously, we are now permanently poised for work.”
Schemes to algorithmically optimise productivity are affecting workers across economic sectors, from the tech employee instructed to wear a Fitbit 24/7, to the Deliveroo driver rushing to meet fine-grain performance targets and the warehouse worker monitored during bathroom breaks.
Yet, digital surveillance does not impact workers equally. Economically vulnerable workers often have no choice but to consent to invasive surveillance measures. In contrast, workers with bargaining power—often highly skilled workers, or workers with strong union support—have the power to resist. Around the world, as the gig economy continues to break down organisational networks, isolating workers in states of precarious employment, a tiered system of surveillance inequality is taking shape.
Economically vulnerable workers often have no choice but to consent to invasive surveillance measures
In order to protect the most vulnerable workers from the exploitative practices made possible by digital technology, campaigns to protect the personal data of gig economy workers must be complemented by efforts to secure stronger labour rights.
Recent efforts by gig economy workers to protect their employment rights demonstrate just how closely the problem of worker surveillance is entwined with broader issues of labour today.
In the UK, Uber drivers sued Uber for improperly categorising them as freelance workers instead of employees with benefits and protection. Yet, without access to Uber’s platform data, drivers cannot calculate their net earnings to ensure compliance with minimum wage protections or launch an appeal if they are fired by an algorithm. So, the drivers turned to the GDPR, and with the support of the App Drivers and Couriers Union, a number of UK Uber drivers filed a lawsuit against Uber in the district court in Amsterdam to demand access to their data, including GPS location, hours logged on, tips, and trip details.
Providing gig economy workers with stable wages, benefits, and job security would give workers more leverage to organise in opposition to invasive digital tracking technology
The Uber drivers are not just seeking more control over their data: they are seeking more control over their state of employment. As Anton Ekker, the Amsterdam privacy lawyer representing the drivers, said to the Guardian, “this is about the distribution of power.” Providing gig economy workers with stable wages, benefits, and job security would give workers more leverage to organise in opposition to invasive digital tracking technology.
Crucially, worker organisation throughout the gig economy also promises to expand the impact of local and national victories against platform companies, and facilitate strategic coordination so workers can more effectively take advantage of existing legal mechanisms—such as the GDPR—that have the potential to protect their rights.
As the COVID-19 pandemic threatens to hurl vulnerable workers into an even more precarious economic future, it is also expanding the surveillance power of employers. Protecting the digital rights of workers against this ominous “future of work” in a manner that fully addresses the state of economic inequality in the gig economy calls for more than data safeguards—it calls for empowerment.
Tatum Millet is a 2L at Columbia Law School and a 2020 summer intern at the Digital Freedom Fund.