7 September 2001. Thanks to D.

http://www.cnn.com/TRANSCRIPTS/0109/06/gal.00.html

GREENFIELD AT LARGE

Electronic Surveillance: Is It '1984' in the Workplace?

Aired September 6, 2001 - 22:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JEFF GREENFIELD, HOST: Tonight, was your boss looking over your shoulder at work today? More and more Americans work under electronic surveillance: E-mail, Web browsing, the bosses can see it all. But isn't it their right to do so? Welcome to 1984 Incorporated tonight on GREENFIELD AT LARGE.

You may have heard that the Justice Department today said it would not seek the breakup of Microsoft, but next week comes a judicial decision that could have a more far-reaching impact on how computers affect your life -- at least, your working life. The U.S. Judicial Conference is going to decide whether court employees, including federal judges, will be subject to monitoring of their computer use. In other words, their Web use will be tracked, their e-mail read.

If you think this doesn't affect you, consider this: If federal judges vote to live under this scrutiny, are they likely to rule that average Americans don't have to as well? And that's a question that courts have been dealing with, as more and more companies use workplace computers to track what their employees are doing. Here's CNN's Garrick Utley.

(BEGIN VIDEOTAPE)

GARRICK UTLEY, CNN CORRESPONDENT (voice-over): It was fiction, wasn't it? That scene from "1984," with Big Brother hovering over the workplace. But at least you knew that he was always watching you.

Today at work, we don't always know who or what inside the computer is watching our every move on the Internet and reading our e- mail. What we do know is that an estimated 35 percent of the online work force in the United States is being monitored by employers. That's 14 million workers watched by software that is cheap to install and easy to use.

(on camera): And it's legal. How's that? Your boss, of course, doesn't have the right to open your mail that comes in envelopes or listen into your telephone conversations without letting you know. So, whatever happened to your right to privacy in there?

(voice-over): The answer is back in the Reagan years, when the president signed the Electronic Communications Privacy Act of 1986, as passed by Congress, which allowed the monitoring of an employee working on the employer's computer system. Which led to something that Ronda Wieben, an insurance claims adjuster, would never have thought of back in 1986. She was considered a model employee until her bosses discovered she had uploaded travel and landscaping software onto her company-issued laptop. She was fired.

RONDA WIEBEN, INSURANCE CLAIMS ADJUSTER: If it was that they needed to make an example of someone that no one ever thought could be fired to really scare people, I think that they achieved their goal.

UTLEY (on camera): It is, of course, easy to beat up on bosses who act like big brothers. But are they the villains or the victims?

(voice-over): In the past two years, major corporations, such as Xerox and Dow Chemical, have fired scores of employees for spending time on pornography and shopping sites. The "New York Times" fired 22 employees in its pension office for sending offensive e-mails.

Smaller employers too, such as Scott Leibowitz, have to worry about company liability for what employees are doing online, as well as workers who are not working. He monitored them.

SCOTT LEIBOWITZ, SMALL BUSINESS OWNER: They were spending between 50 to 70 percent of their day on sites that were not relating to our business.

UTLEY: And then, there was the secret government monitoring of IRS workers. It found that 51 percent of their time online was spent in chat rooms, sending personal e-mail or checking their investments, rather than checking your tax return.

(END VIDEOTAPE)

GREENFIELD: CNN's Garrick Utley.

Joining me now from Los Angeles, Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals. Judge Kozinski has made news by publicly and vigorously opposing the proposed rules for overseeing judges and their employees.

Judge, your public comments and your writings have placed great stress on the quality of the work force that you deal with. Is this a case of special pleading? Is your argument that the government shouldn't do this, because of your -- the kind of people who work with you and around you, or is it a more general argument?

JUDGE ALEX KOZINSKI, 9TH CIRCUIT COURT OF APPEALS: Well, Jeff, first of all before I speak, I should explain to you that my views are entirely my own. I don't speak for my court or for the federal judiciary.

That aside, the point I made in my "Wall Street Journal" op-ed related to our work force in our capacity as employers. I do believe that the federal judiciary is blessed in having the finest work force, the finest work force in the country, loyal and dedicated employees. And in our capacity as employers, we ought to treat them with respect and dignity.

I want to be careful not to speak to other employers or other issues or other agencies, because cases like that could very well come before the courts, and I certainly don't want to prejudge them.

GREENFIELD: But the broader point I would think is this, that, as you know -- for instance, Garrick tells us one survey of IRS employees showed that more than half of online use was not work- related, and the capacity of federal government workers or government workers, to occasionally goof off has reached the level of an old cliche. My question is, doesn't the government have the right to say to us taxpayers, you have the right to an honest day's work for an honest day's pay and this is how we are check the employees to make sure it happens?

KOZINSKI: Well, yes and no. I think we certainly have a right to demand an honest day's work from employees. We can demand that they not goof off, they spend time on their job. But you don't need access to the Web to goof off. You can read newspapers, or you can read the comics or trashy novels, or spend time chatting with your fellow employees.

GREENFIELD: Right, but of course -- I'm sorry -- the point -- excuse me, but the point is if you are on a computer, it is a lot harder to tell whether you are accessing important information or chatting up a friend in England?

KOZINSKI: I don't have any difficulty telling the productivity of people who work for me. I think most managers can set standards, and if those standards are met, it seems to me that is what the employer is entitled to.

The question of what's permissible, so long as employer sets clear standards, and how you detect it are very separate questions. You can very well tell employees there are certain kinds of Web sites you shouldn't access, or you should never do it except at lunch time or breaks, on your own time.

But that's a very different question from saying, we are going to snoop on everything that you do on your computer. Your letters, e- mails to your mother, prescriptions you might order online, or let's say on the telephone, speaking to your doctor, or anything like that.

GREENFIELD: OK. Let me, if I may, bring a couple more voices into this discussion. Jeffrey Rosen joins us from Washington. He has been covering this exact issue as legal affairs editor of "The New Republic," and has written a book on privacy, "The Unwanted Gaze." Here with me in New York, Eric Greenberg, director of management studies for the American Management Association. It helps member companies develop policies on privacy and monitoring.

Mr. Greenberg, your organization's studies shows that something more than three-fourth of employers monitor their workers one way or other.

ERIC ROLFE GREENBERG, AMERICAN MANAGEMENT ASSOCIATION: Sixty percent of them check Internet connections, almost half check e-mail.

Well, they are worried about three things, they are worried productivity, the -- how much time you are spending doing your job, how many -- how much time you're spending goofing off. Exactly.

They are worried about security, opening up the system to viruses, opening it up to hackers or something like that, but by far the greatest concern has to do with liability, specifically liability against a charge of allowing a hostile workplace environment in a sexual harassment lawsuit. They are laser-like focused on that, almost to the exclusion of things that they should be more worried about, but aren't.

GREENFIELD: All right. Just very quickly, though, isn't that, as the Church Lady used to say, "convenient?" I mean, if there was no sexual harassment law, wouldn't they still want to know if their employees were goofing off?

GREENBERG: They would have an easier time judging the productivity. As the judge says, there are other measures that you can take, but the only way that you can tell whether or not Internet connections are going to legitimate, business-related sites is by checking those connections.

GREENFIELD: Jeffrey Rosen, let me spell the case out for you. I want a job, I go to a private employer, assuming that the employer is straight with me, and says, look, these are the rules you are playing with, we are going to check your computer, we are going to check your phone use. If I don't like it, I don't have to work there. What's the problem?

JEFFREY ROSEN, LEGAL AFFAIRS EDITOR, "THE NEW REPUBLIC": The question is whether you can really consent under questions -- conditions that are this coercive.

Look, let's face facts. Nowadays, we live on a computer. The rules have allowed employers to check e-mail sent from home over company computers, and the idea that in an information economy -- we are not talking about making widgets here -- you can really expect someone to be surveilled 24 hours a day, and be productive, and be creative, and do the kind of job that we need to succeed today is nonsense.

The idea of efficiency is really a convenient distraction from the fact that it's not human to live in such a world. And the fact that the judges are finally forced to confront the condition that some of their decisions have inadvertently created -- made -- it's a case of better late than never.

GREENFIELD: I want to get back to that in the next segment, but do you, Jeffrey, take seriously the concerns that Eric talked about, that the companies say, look, you know, if somebody pops up with an offensive sexual graphic on the computer and it happens enough, we could be out a whole lot of money.

ROSEN: Absolutely so, but this is a problem in sexual harassment law itself. It's unfortunate that the law has evolved in a way that forces employers to monitor stray jokes. By themselves, these couldn't be actionable, but taken together they might create a hostile environment.

This is a bad thing. This is a fault of the law, and this is an opportunity for us to try to refine it, so the employers are not forced out of fear of liability to really monitor far more speech and conduct than anyone thinks the law should permit.

GREENFIELD: Judge, when you hear Jeffrey Rosen, do you think that maybe your own concern that has developed over privacy invasions has made you rethink how the law should apply to private employers?

KOZINSKI: Well, I was fortunate enough to review professor Rosen's book for "The New York Times," and it really opened my eyes to this problem. It's really an excellent book. I really recommend it very highly to anybody out there who is interested in the issue. I do think that there is a tendency for us to use technology to its limits.

Technology is a very powerful tool, and the tendency is to say, gee, if we can do it, we must do it. And there is a very big difference between the things that we can technologically do, and things that are morally right to do. We could install cameras in bathrooms to make sure employees are not stealing paper clips. The bathrooms are owned by the employer. They pay the rent they pay for the water. But it wouldn't be right. It would not be an appropriate means of dealing with a problem.

GREENFIELD: I gotcha. We are going to continue this in a moment. And later we'll talk with Salman Rushdie, whose work led to a real loss of privacy.

Please stay with us.

(COMMERCIAL BREAK)

GREENFIELD: We're talking about workplace privacy, or what is left of it, with three people who have a lot to say on the subject. Jeffrey Rosen, legal affairs editor for the "New Republic." Eric Rolfe Greenberg is from the American Management Association, which supports the monitoring of workers' computer usage, and from Los Angeles, Judge Alex Kozinski of the ninth circuit court of appeals.

Mr. Greenberg, let's pick up on a point Jeffrey made. I mean we are not talking sweatshops, perhaps, but you know, but nobody checks on me if I take some time e-mail a friend or I call and try arrange, if there is a health problem in my family.

But there are a lot of people for whom that computer and that phone, even at work, working moms, a great majority of moms work, isn't there a problem with creating a workplace in which you never quite know when the guy is looking over your shoulder?

GREENBERG: You should know. And one of the things that disturbed me when I read the judge's article in "The Wall Street Journal," on Tuesday was that the pilot program that they were undergoing was surreptitious. No one told the employees that they were subject to this (UNINTELLIGIBLE). This is contrary to regular practice. Ninety percent of the companies engage in any of these activities tell their employees that they are doing it, which is good management practice. It is what we urge.

GREENFIELD: But it is a little cold comfort it seems to me. If you are somebody without -- without a lot of clout in the workplace and you know, you've got a crisis, your kid is sick, there is a day care problem, you are going to need, if you have any instinct, you know, paternal, maternal instinct, to say, you know, I'm just going to have to take some time and that is the day you know that at some point your employers are going to check you, and it turns out that day and they say, what you were doing with 45 minutes using our computer to arrange this?

GREENBERG: But the answers are the same as they would have been if you were spending 45 minutes on the phone. There are longing policies about personal use of the phone and there is a lot of leeway given. People understand the necessity of making these kinds of contacts.

Two thirds of companies allow personal use of the computer for Internet activity. They just want to make sure that you are not spending too much time on it and not doing your work. They want to make sure you are not opening the system up to hackers and viruses and most especially they want to make sure that there isn't going to come back and bite them because you are connecting with sites that are exposing people to stuff they don't want to see.

GREENFIELD: Jeffrey Rosen, you made a point earlier, and I want to focus in on it. Have the courts, in effect, has the government, in effect, created this kind of weird situation? There was a point at which I think under our law now you can test drug use, you can test students applying for loans, but you can't test -- what -- judges, I guess?

Have they in effect wrapped a cloak of protection around them they are not willing to give the broader public?

ROSEN: It is an unfortunate irony that it is in cases where their own privacy is at stake that judges are most concerned about privacy. But, it was relatively recent that this law has evolved. And it is unfortunate that merely by warning us that we may be monitored, the courts say employers can lower our expectations of privacy in a way that gives them all the more discretion to monitor.

So, as you suggested, this is a Pyrrhic victory. It wouldn't be a good thing merely to warn people, because we really don't have a choice in the age of the Internet not to use the Internet. It is like saying, if you don't want to be photographed in public, as people are increasingly in Britain, where I have just come back from, you can choose not to go on the sidewalk. It is not an option. We just have to make a political choice in this country about what kind of society it is civilized to live it.

GREENBERG: You do you have an option as to when and where you get on the Net and when and where you use e-mail. It is easy to turn this into a big brother story, but it is not really a big brother story. You can escape big brother. You couldn't escape big brother. You can escape corporate oversight simply going across the street to a cybercafe, down the street to a public library or doing your personal stuff at home.

GREENFIELD: I just want to know, I'm not asking you to prejudge, pardon the pun, but if a movement grows to say to employees, you can't monitor your employees's workplace use, isn't there a catch-22? You can't monitor the use but you can be held legally responsible for the abuse of it in case of a sexual harassment case?

KOZINSKI: Actually the catch-22 goes either way. If we say you can monitor, then you must monitor because that becomes part of your responsibility. If we say you can't, then you really cannot then hold the employer responsible for failing to monitor.

But I want to answer something that Eric mentioned. He said oh, it is no big deal to have somebody listening in and you can explain you were talking about your -- to your child's doctor. Well excuse me, I don't think you should be required to have to worry about somebody listening in to the conversation between -- on telephone -- between yourself and your child's doctor. It is nobody's business.

And this policy that is being proposed for the federal judiciary which applies now to much of the federal government, applies to telephones as well. It seems to me that we spend a lot of our time at work, and so long as employees are productive, so long as they spend their time at work, doing their employer's job, they should not have to worry when they use a telephone, or the computer, to perform a little bit of personal business to keep their life going while mother and father are at work.

GREENFIELD: Appreciate that. I know there is much more to be said about this and I hope we are going to get a chance to do it, but we are out of time. Of course we gave Judge Alex Kozinski the last word because he is a federal judge. We also want to thank Jeffrey Rosen of "The New Republic," we've got his book plugged by that federal judge, I am envious, and Eric Greenberg of the American Management Association.

When we come back, a talk with Salman Rushdie.