At 10:12 PM 12/28/95 -0800, Tim May wrote:

However, corporations aren't given the luxury of disassociating themselves from the actions of their employees. (Contract workers are a further issue, and the issue of whether they supply their own tools/computers, workspace, etc., enters in.)

I think this point about "contract workers" is going to become a lot more interesting as people move away from the traditional "employee for life" model and towards working at home/telecommunity, or working as subcontractors/consultants, etc. Further, it's becoming more common for employees to own their own communcations tools, and bring them to work. Arguments about a right to eavesdrop as being derived from workplace property ownership don't seem to work where an employee is talking on their personal cell phone, getting/sending messages on the SkyTel two-way pager that they pay for, using their laptop/Newton/PDA to get/send E-mail (using their private ISP/POPmail provider mailbox), and so forth. The concerns (about disclosure of secrets or wasting of time) raised to justify the invasions of employee privacy are still present, of course, but not the convenient "it's not your phone so you have no privacy" excuse. Employee/contractor ownership of work tools (or non-work related communication tools in the workplace) is probably going to get even more interesting; recent Ninth Circuit decisions re copyright law and licensing agreements have been sharply restricting the right of software licensees to allow third parties to use the licensed software. (e.g., _MAI v. Peak_ and _Triad Systems_, see http://darkwing.uoregon.edu/~gbroiles/triad for more on this and pointers to other analysis and the opinions themselves) I think this may lead to software licenses (or hardware ownership) which follows employees from home to work, and from job to job. Employees may get a credential from Microsoft, or Borland, or Mathematica or Word Perfect saying that they're allowed to be using a set of software tools; professionals will probably pay for those credentials themselves, or have them paid for as a fringe benefit of employment. An easy connection is to training related to the "software-right" - the licensor would also certify that the employee has been subjected to X hours of training and knows at least Y buzzwords and Z fancy tricks relating to the software. Retired or unemployed workers may work in a "black market", using software they're trained on but not licensed/certified for, logging on with the credentials of licensed users who have died recently or are sleeping. (Similar to the network of unlicensed uninsured under-the-table contractors, framers, electricians, drywall installers, etc., who exist at the fringes of construction activity.) And so on.

I maintain that my employees are beholden to me as to what they run on their computers. They can always choose not to work for me. (And the same applies to hotels, actually. Were a hotel to have stringent rules on in-room behavior, such as the YMCAs and religious retreat hotels have, then customers have little right to complain about bed checks, mixed sex bans, etc. That most hotels have no such rules says more about where the Schelling points are than it does about the efficacy of rules and laws.

Subscribers to the Coase theorem would suggest that (modulo transaction costs) it doesn't matter who is initially assigned the right to determine whether or not surveillance will occur - the party who most values that right will bargain for it in the end. Then again, that party may lose something in exchange - and that's what makes this interesting. (And, I think, much too complex to simply be dismissed as a matter of "property rights". Then again, property looks to me like something that law creates, not something which exists pre-law which law is created to protect. YMMV.) I'd rather see the right to control surveillance assigned to employees, and let employers pay extra for it if they think it's necessary to their business situation. (Some might argue that this is the current situation, or at least that surveillance is something that market participants bargain over. My impression is that the current situation is legally murky absent a clear statement re "we're going to monitor you on the phone and search your briefcase when you enter and leave" and that a clear resolution re the legal baseline of surveillance would be useful to bargainers. And if we were to set a baseline for further bargaining, I'd rather see it set to favor employees.) -- "The anchored mind screwed into me by the psycho- | Greg Broiles lubricious thrust of heaven is the one that thinks | gbroiles@netbox.com every temptation, every desire, every inhibition." | -- Antonin Artaud |