Workers Defenseless Against Capitalist Electronic Snooping


The People
January 1997
Vol. 106 No. 10


"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-- Fourth Amendment to the Constitution of the United States


Americans like their privacy. They consider it a fundamental right and one of the most cherished values of a free society. A Louis Harris poll conducted a few years ago revealed that 79 percent of Americans agreed that if the Declaration of Independence was to be rewritten in the 1990s, it should include the right to privacy along with life, liberty and the pursuit of happiness.

It is apparent, however, that the advance of modern technology is making the right to privacy almost impossible to preserve. This may be distressing to ordinary citizens, but to employers (much to their delight) it is another wrench with which to tighten the screws of exploitation on the American worker. It also offers new opportunities for governmental agencies to suppress dissent and intimidate political opponents.

The word "privacy" is not mentioned anywhere in the Constitution, even though Supreme Court decisions have construed "privacy" to be the underlying value of the Fourth Amendment. That amendment guarantees protection from unreasonable search and seizure.

There was a time, however, when the Supreme Court wrongfully ruled that an intrusion, even as obvious as wiretapping, was not an invasion of privacy. That was 1928. William Howard Taft was chief justice. Little did the Court anticipate the present almost unimpeded access to personal information. Fortunately, the Court reversed itself in 1967 when it ruled in KATZ V. UNITED STATES that not only are persons, houses, papers and effects protected by the Constitution, but also conversation. This was an about-face from previous interpretations, which held that only tangible things are protected, and then only from actual physical trespass. That decision augured well for future privacy protection under the Fourth Amendment.

Despite its hopeful portent, this broad interpretation offered little protection to workers. They now find themselves subject to a bewildering array of snooping devices, especially, but not exclusively, in the workplace. "From the moment an individual first walks through an employer's entrance, privacy rights are relinquished," wrote Kurt Decker in his book, PRIVACY IN THE WORKPLACE. Supposedly, the privacy thus yielded up relates solely to job performance and stops there. That's only the beginning, however. Workplace privacy intrusion penetrates to various facets and phases of employment affecting millions of workers. Employers use testing, monitoring and surveillance to gather all kinds of personal information, job-related or not. The stated goal is to improve efficiency. That's a euphemism for intensifying exploitation and increasing profits.

In an AMERICAN BUSINESS LAW JOURNAL article on workplace privacy and the Fourth Amendment, author Don Mayer notes that "employers increasingly gather information about employees' medical histories and conditions [no doubt with reducing health insurance premiums in mind], drug and alcohol use, propensities to steal or lie, personality characteristics, genetic makeup, restroom habits, and various 'off duty' behaviors such as smoking." And it is a well-known fact that monitoring of employee productivity at computer workstations is commonplace.

To make matters worse, the Supreme Court in 1977 rejected a challenge to a New York State law requiring certain prescription drug records to be kept in a central computer bank for five years. Conceivably, through computer matching, traditionally personal data about a person's movements, finances, sexual behavior, and political and religious activity would be available to government, employers and marketing firms. Control over personal privacy would then be utterly obliterated.

Obviously, the framers of the Constitution had no notion of modern conditions when they wrote the Fourth Amendment protection against unreasonable invasion of privacy. Nor does the sophisticated snooping equipment of the late 20th century boggle the minds of present-day Americans any less than it would have boggled the Founding Fathers. Interestingly, unlike other protections in the Bill of Rights, the Fourth Amendment is not rooted in English law, but rather derives from an American reaction to high-handed British searches of colonists' homes in pre- Revolutionary days.

Today there are devices that can easily listen through walls. There are lasers and parabolic microphones that enable eavesdropping by simply aiming at a window. We now have chemical analyses of human hair and waste products, genetic and personality testing, voice-stress analyzers, infrared and starlight telescopes, and telephoto lenses. Privacy is virtually impossible to protect, even more so in view of recent legislation like the Digital Telephony Act of 1994, which requires communications companies to adjust their equipment to ensure governmental tapping capability. In addition, the Clinton administration has approved a scrambling device to be installed in newly manufactured telephones, fax machines and modems. It will enable police to monitor all electronic transactions, including bank transactions and e- mail. Theoretically, a warrant is required. The exceptions to that requirement are so numerous and so readily allowed, however, that just about everyone's privacy is left to the discretion of the police or other curious governmental agency. Little wonder the ACLU's Laura Murphy recently described the Clinton administration as "the most wiretap-friendly administration in history."

Since the 1967 Katz case, the Supreme Court has favored the government wherever privacy interests have clashed with governmental interests. Even where there is a defective warrant, i.e., one obtained despite failure to establish probable cause, the Court has determined that the "good faith" of the police is sufficient to permit the admissibility of seized evidence. This obviously puts the American capitalist state squarely on the road to reliance on police "good faith" instead of a warranted search; for if a search can be conducted with a bad warrant, the next step is a search with no warrant.

From all these facts two conclusions can be drawn. First, as the capitalist state comes under increasing pressure to maintain "order -- from outside forces such as terrorists, foreign economic rivalries, and from such internal social ills as poverty, and crime -- more governmental snooping and repressive measures can be expected, as well as a narrower interpretation of Fourth Amendment privacy protection. Second, within a capitalist economic system of private ownership of industry and production for profit, workers have no control over the workplace and no protection against invasions of privacy. Meanwhile, they must continue to produce the wealth that will be used to buy the technology that, in turn, will be used to intensify their own exploitation. How ironic.