Remote working may increase digital surveillance practices of employers, curtail privacy rights for employees

18 Oct 2022

When you receive work devices and an email address specifically for work there is a general understanding that your emails, calls, and search engine history can be monitored by the company. With the expansion of remote work, managers might want to employ more complex software that can time how long you work on a project; monitor how long you spend sending and receiving emails, and at the extreme end can give an employer access to your audio and camera feed on your devices.

Remote working has brought about a need for new systems and possibly new pieces of legislation as more companies are realising the benefit of working from home or a hybrid model of partly office and remote work. Organisations such as the National Economic Development and Labour Council, (Nedlac), and other think tanks have had remote work regulation as core parts of their summits, discussions, and webinars.

Software such as Teramid offers “screen recordings, live views of employee PCs, tracking emails, and keystrokes to Zoom sessions”. There is a variety of options such as Hubstaff, AgenTrack among others. Some have artificial intelligence features and all claim to comply with privacy laws. Veriato Cerebral promises to deliver “robust employee tracking and data collection powered by artificial intelligence (AI) to not only track employee activity but also help mitigate potential insider threats”. Most surveillance tools promise security from threats and that can take precedence over user privacy and protection from having their data being sold.

At the extreme end, monitoring software can allow employers to access live audio and video from employees’ devices.

Privacy concerns

Surveillance in general has been a contentious issue over the past two decades in South Africa, as the rise of the digital age has brought about increasingly powerful technologies that pose unprecedented risks to the right to privacy.

Several academic studies and civil society organisations have indicated discomfort with the lack of adequate safeguards to regulate the use of surveillance tools. South Africa does have pieces of legislation that speak to employee monitoring such as the Personal Protection of Personal Information Act (Popia), sections of the labour law, and Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (Rica). With that said, these regulations were not created specifically for looking at where to draw the line with employee monitoring.

Chief Executive Officer of Labour Law Management Consulting Ivan Israelstam says labour law does not cover employee monitoring in-depth and employers should get familiar with Rica and create company policy around that act which he finds a bit vague in parts.

“The labour statutes themselves have no provision for this (monitoring software regulation), which is why employers need to understand Rica and to build protections for themselves via their employment contracts, internal policies, and practical mechanisms,” said Israelstam

“I think that Rica is written broadly enough to cover remote working. However, a new, well-written Rica code of practice would assist employers and provide more clarity as to how to implement monitoring mechanisms in compliance with the law,” Isrealstam added

Israelstam says Rica can be ambiguous in certain places. He states “section 6 appears to allow monitoring of employee communications if these communications have been made in the course of the carrying on of the employer’s business. However, there is no clarity as to what “in the course of the employer’s business” means. Does it mean that the subject of the email must be business related or does it mean that the email must have been sent during business hours via the employer’s facilities?” said Israelstam

He finds section 2 of Rica contradictory as it outlaws the interception of any communication in the course of its transmission. “Rica appears to cover telephonic, email, and all other communications. The word intercept in section 2 of Rica means the “…acquisition of the contents” of the communication and includes access via “ listening to, viewing, examining or inspecting the communication,” Israelstam stated.

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The Act also states that interception of communication, where consent was given, falls outside of the Act. But it does not clarify how well-informed an employee should be in order to give consent, or to the extent of interception of their communication and how much an employer should divulge.

Read more in Daily Maverick: ‘Shower head video cameras: How Rica fails to regulate state surveillance of citizens’ and ‘Beware of using company resources for private communications in the era of Popia’

Work culture shift

There are several benefits to the remote work and hybrid models for both employees and employers, according to a survey conducted by the Michael Page publication. Thes include saving on commute time which can range from 20 to 60 minutes, saving on petrol, transport money, and hundreds of thousands of rands on office rent, water, and electricity.

“Around 63% of South African-based professionals say their productivity increased while working from home, with 31% sharing that their productivity stayed the same even after transitioning into the remote work set up due to the pandemic. Remote working also did not lead to less motivation, on the contrary, more than 50% of employees in South Africa felt even more motivated and 41% said their motivation levels stayed the same,” the report read.

A specialist on digital rights, advocacy, and communications — Murray Hunter — says Rica doesn’t presume to be about the conditions in the workplace. He says Rica is about controlling how the police, the intelligence officers, and the government intercept mass communication that can pose threats to democracy, as journalists, activists, and others have been surveillance victims.

“The relationship between you and your employer respecting your privacy — that’s a different thing,” Hunter said.

“Putting the focus on how far employees can go with monitoring your devices isn’t the answer. I do think that high-level monitoring is unethical, but I think we should focus on culture; it feels like there is the wrong instinct to treat employees with suspicion. Consider how much money, manager’s time, and technology are going towards policing employees versus leading effective organisations where people feel motivated to work. Where an organisation can respond compassionately, effectively, and efficiently to people not being able to be productive and perform tasks. If a company finds it easier to install software on a person’s computer, then maybe the problem is not the employees,” said Hunter.

Although Israelstam calls for more precision with regulations around monitoring employees, he echoes Hunter's sentiments about creating a culture of trust with employees rather than using software to micromanage staff.

“While a focus on performance management will still have some importance, a radical shift to a co-productivity culture fuelled by work performance reward systems will need to take centre -stage to grow businesses and the economy. This approach will rely more on employee motivation to manage themselves and truly become part of the team,” said Israelstam, who has previously been a commissioner at the Commission for Conciliation, Mediation, and Arbitration (CCMA).

Istraelstam says he observed a rise in concern about communication monitoring in the South African labour market “in the sense that more employers are becoming aware of the law and requesting help in identifying and implementing mechanisms to protect the employer. I think there are still many employers and even more employees who do not know the law,” said Israelstam.

Hunter is currently a senior associate at Alt Advisory — a public interest advisory and research firm that deals with public law and policy, information rights, data privacy, and emergent tech & innovation. Hunter has held senior positions in the Right2Know organisation that has faced suppression through surveillance. He says designing specific legislation can take years but this is a chance for corporations to take the initiative.

“Recognising that it can take years to create a legislature, there is an opportunity for corporations to develop clear policies. Those policies should capture that employees have a degree of digital privacy even in the workplace. They must have a clear understanding of what monitoring is happening, under what circumstances, who can monitor, and how they can find out if you are being actively monitored by your employer. Also in the context of people working from home, how will employers respect the privacy of your home, while you carry out their work from your home?” Hunter questioned. MC/DM

Naledi Sikhakhane is a journalist researching digital surveillance with support from the Media Policy and Democracy Project, run by the University of Johannesburg’s Department of Communication and Media.

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