Full Text: Open Debate

Barry: The possibility that an employee’s speech might be misconstrued as a company-endorsed viewpoint is a legitimate concern, and certainly there are situations where employers are justified in their efforts to keep the two separate. Many employees, for instance, appropriately caution employees that political campaign activity must not be tied to the company lest they expose the firm to potential violations of campaign finance laws. But as with other forms of speech we’ve been discussing, there is a difference between prudent caution to avert liability and zealous vigilance that tramples employee expressive rights. Consider, for example, this caution to workers in a major retail chain’s code of conduct: “You can enhance or hurt the company’s image with every written, verbal, or electronic communication.” Or this from a big health care company: “In the conduct of their personal, civic, and political affairs, employees should at all times make clear that their views, actions, gifts, and contributions are their own and are not those of” the company. The first imposes an implicit gag order by suggesting that any and every employee utterance on or off the job could land you in trouble. The second is a form of compelled speech, mandating unnecessary disclosures and implying with not much subtlety that if your speech is linked to us, expect to pay a price. Given that people who make news in their communities are routinely identified by occupation in press reports, this imposes a non-trivial potential chill on off-work civic engagement. Implementing “proper controls” to cope with “increased scrutiny and liability” sounds reasonable, but can we trust employers to grasp the meaning “proper” and “reasonable”?

Sfakiyanudis: There is no doubt that drawing the line for acceptable expression in a corporate environment is neither easy nor a one time event. Much in the way that each State has its own moral barometer by which their constituency measures the validity of their laws, each company has its own culture and values that define their view of acceptable behavior. Where most companies stumble is by not clearly articulating their policy. By having a clear policy employees not only know what is expected, they have the opportunity to respond with concerns. An employer doesn’t necessarily need to be trusted to grasp the aforementioned concepts, since the line is theirs to draw. Where we do put trust in our employers is that once they have defined acceptable use, they will keep the lines of communication open with their employees to continue to refine a policy that is reflective of the culture of the company.

Barry: You say that we should trust employers, once sound policies are in place, to “keep the lines of communication open with their employees” in the service of further policy refinements. I’m always in favor of keeping lines of communication open. But your company sells products intended, in part, to help employers keep tabs on their employees, yes? An article that appears on your firm’s website refers to one of your products as something that “tracks down network slackers and miscreants” in a way that keeps employees “unaware that Big Brother is watching.” I don’t quarrel with companies’ desire to monitor their networks in order to wisely manage resources and control costs. But touting those network tools as an efficient version of “Big Brother” strikes me as philosophically inconsistent with the notion of open communication. My point here is not to assail the product in question, but rather to ask how you think the employers who buy your product should balance the need (and one hopes the desire) to respect employee rights with the impulse to surveil?

Sfakiyanudis: The line you quote from the website is from an article by a trade publication, not something the company “touts” as a feature. The product referenced in that article sits on a corporate network and passively monitors network traffic in order to quantify the bandwidth usage, time spent surfing, and time spent instant messaging by an employee on a corporate network. The system also keeps track of the websites visited by each employee and keeps a historic record of this information. Our products do not give an employer the ability to impede an employee’s privacy. Instead, it gives an employer a way to quantify time spent surfing and where the employee surfed in order to assist resource allocation and policy enforcement. In my experience most employees, managers included, know which of their co-workers spends the day instant messaging and posting to blogs instead of contributing to the productivity of the company. With our systems in place, an employer can verify with certainty who is violating acceptable use policy instead of doing so based on suspicion alone.