Law permitting employers to snoop on workers' communications causes concern JEN ROSS Special to The Globe and Mail; With a file from reporter Natalie Southworth Thursday, November 9, 2000 LONDON -- Amid the clatter of keyboards in a busy Internet caf in Central London, a man in a navy suit stares glassy-eyed at his flat computer screen. Owen is e-shopping for a new laptop -- one of the many personal activities which, he says, he does not dare undertake from work. On Oct. 24, a controversial new British law came into force that allows employers to read employees' e-mail and monitor which Web sites they are visiting during work hours. "Lots of people are really scared about this," says Owen, who would not disclose his surname. Owen is expressing the worry of a growing number of British employees who are turning to Internet cafs and non-work e-mail systems to escape the feeling that Big Brother is watching them at work. To be sure, e-mail in the office has never been totally secure. As a network administrator, Owen has had access to his co-workers' e-mail. But what's new is that now employers can do the monitoring -- they can do it legally, and possibly use the information against their workers. The new law, drawn up under the Regulation of Informatory Power (RIP) Act, gives British companies wide and unprecedented powers of surveillance that other Western countries will be watching closely. In Canada, court rulings have shown that monitoring employee messages can be legal as long as employees are warned in advance. A growing body of U.S. common law indicates that companies have the right to monitor e-mail. But no specific law in either country empowers employers to read e-mail. In Britain, even before the new legislation, there were cases of employees being fired for booking on-line holidays during work hours. In September, 40 workers with cellphone company Orange PLC were let go for exchanging "inappropriate" material over internal e-mail. Owen has also seen co-workers fired for forwarding obscene jokes. But now he fears employers could take unfair advantage of their sweeping new powers and increasingly seek to monitor more information. Even some senior managers oppose the law. Morgan Davis, vice-president of management consulting firm Kaiser Associates International Inc., is in the position of potentially becoming an e-mail snooper -- and a snoopee. "It's a very control-freak type of atmosphere to let an employer read all their employees' e-mail under them," Mr. Davis says. "You can't build trust that way." He says the law can only be just if it allows employers' e-mail to be put under the same scrutiny by employees. Mr. Davis believes the hierarchical nature of the law could potentially have a poisonous effect: "It highlights the divide between employer and employee." But for others, this workplace surveillance isn't a problem. "My e-mail and Web use is provided and paid for by my employer so I don't mind the monitoring," says Tom Elliott, a law reporter for a property magazine. "I think the only people who need to worry are those who are abusing their access." Besides snooping on e-mail, the new law allows employers to listen in to and record phone calls, check who an employee is calling on a cellphone and search the hard drives of laptops, if these items are provided through work. "What if you have to ring the doctor and you can only do it during work hours and your employer can monitor your calls? You could find out you are pregnant or HIV-positive," says Annabel Crooke, a recruitment co-ordinator for Monitor Co., a strategic consulting firm. "There are certain things you just don't want your employer to know." The new law responds to businesses' argument that they need wide access to staff communications -- for example, to answer business mail sent to workers who are home sick, to check for computer viruses, or to investigate leaks of business information. "Personal" e-mail is still supposed to be off-limits. However, most e-mail is not labelled to differentiate it. Once the boss has read far enough to realize the message is private, the damage has been done. Among the law's critics are unions and anti-surveillance campaigners, who argue that it stomps on privacy rights. There is talk of a challenge under the new European Human Rights act, which became law in Britain on Oct. 1. And some companies are simply choosing not to take advantage of the new spying powers at their disposal. Still, there are those who find comfort in the existence of the law. "I'd like to know that I have the right to do it, although I might not actually do it," says bank manager Tom Binks, commenting on the ability to monitor e-mail, phone calls and Web use. He says many employers won't be bothered to spend the time and money to do the monitoring. The law may prove to be a scare tactic that is a deterrent on its own. Another controversial aspect of the law is that it allows greater access to employee communications by police and intelligence services. The RIP act obliges Internet service providers to install listening posts if requested, so that police or intelligence people can monitor e-mail traffic. As a self-employed writer, Walter Kennedy is not subject to the prying eyes of an employer, but says he is outraged that the state can now easily and legally intercept his communications. Mr. Kennedy is worried because he engages in a lot of advocacy work. "This gives them carte blanche to pry into people's personal lives. In a contentious case, the state could distort things."