Labor and Privacy Implications of Public Surveillance

-- By TheodoraOh - 05 Mar 2024

Introduction: Employees surveilled from all angles.

Private or internal surveillance of employees has become a concern as the workplace becomes increasingly digitized and depersonalized. Amazon employees, for example, are electronically surveilled in myriad ways, recording factors like productivity which may impact personnel decisions. Business Insider. Internal surveillance may even monitor relations between employees and union organizers, implicating labor concerns. Washington Post. Third-party, public, or other external forms of worker surveillance should receive equal scrutiny. While there is little oversight of on-site surveillance, it is even more difficult to measure and regulate employees’ exposure to recording by third-parties. We will explore two categories of workers who are increasingly subject to third-party surveillance, but evoke different policy and political concerns: delivery drivers and police officers. Internal surveillance of delivery drivers has already been, and continues to be, scrutinized and litigated. See NLRB memo; Chartwell summary of NLRB decision regarding inward-facing cameras in delivery trucks. But often, delivery drivers may also be recorded by home security doorbell cameras that homeowners can install and set to record anyone who approaches their door (or even their driveway) without consent or the ability to opt-out, like Amazon's popular Ring cameras. Ring. As a counter-example, however, bystander recordings of police activity may constitute a situation where it might be in the public interest to subject certain employees to third-party surveillance and recording.

Example: Doorbell camera recordings of delivery drivers infringe on their privacy rights.

As millions of doorbell cameras like Amazon’s Ring are being sold and installed every year, concerns over the outward-facing nature of these devices has risen. Business Wire. Technology review website Wired.com has slowly evolved over the years since Ring’s release from generally positive reviews of the doorbell camera to a more critical and privacy-focused viewpoint. See Wired’s 2015 review, notably praising the camera’s ability to record UPS and FedEx? deliveries; Wired’s 2019 piece that appears conflicted about the “Ringification of suburban life;” Wired’s 2023 article against Ring cameras on the basis that “homeowners shouldn’t be allowed to act as vigilantes;” and Wired’s 2024 reporting on warrantless video requests for Ring data. As delivery drivers and the general public become more aware of the constant, inescapable surveillance of the Ring camera (and, by extension, Amazon—or even the police), some homeowners remain staunchly pro-Ring. See Amazon's letter to Senator Ed Markey regarding police access to Ring data; but see recent changes to Ring’s policy in the New York Times. The FTC has noted concerns about Ring’s failure to protect private information, with a focus on exposed videos within consumers’ homes—this implicates larger concerns about the unwarranted, undisclosed public surveillance from those same cameras. FTC.

Counter-example: Police may use privacy concerns as a pretext for limiting bystander recordings to prevent public oversight of police misconduct.

Ignited by the Black Lives Matter movement, popularity and support of bystander recordings have been touted as a mechanism to keep police in check. Police have been consistently opposed to these changes. The New Yorker. But civilians do have a legal right to film police officers and police encounters as long as they aren’t actually interfering with “legitimate law enforcement operations.” ACLU. Without legitimate reasons to prevent bystanders from recording, police officers may use privacy-related arguments to claim some other reason they can’t be recorded: "Cops have long tried claiming that the act of filming them in itself obstructs their ability to do their job…and now that this argument failed, they are rather transparently trying to create a safe space from observation by the people they are sworn to serve." Ari Cohn, Reason. A proposed bill in Florida (which ultimately died in subcommittee) attempted to criminalize recording police by creating a 30-foot “bubble” around police officers so civilians can’t approach or film police. Florida Senate. After unlawfully arresting a woman who legally recorded the incident, one police officer in Florida advanced the argument that the videotape violated the Wiretap Act, “intercepting oral communications.” Ford v. City of Boynton Beach, 323 So. 32 215. Recognizing the absurdity of this argument, the appeals court found that, as a matter of law, “the officers could not have had a [reasonable expectation of privacy].” See Daily Business Review.

Comparison: Balancing policy interests between public recordings and privacy rights.

While police arguments against bystander recording are still largely focused on the idea of civilian “interference,” the idea that police might turn to pretextual privacy arguments highlights an interesting tension in the debate over privacy rights. Pro-privacy activists may find themselves in the interesting position of opposing third-party recording of delivery drivers, while supporting the same activity when applied to the police. This is not an uncommon contradiction; many pro-labor activists find themselves supporting all unions—except police unions. See Harvard Political Review; The Guardian; The Los Angeles Times. Of course, an obvious distinction explaining this dichotomy is that police officers are both public servants and, further, carry guns. Then again, as D.C.’s police union chairman says, in big cities these days “there’s almost nowhere you can go where you’re not being recorded.” The Atlantic. While that might be true and support his policy of telling officers “that’s the way you should behave all the time—as if you’re being recorded,” I’m not convinced that that’s a fair argument or that we should so blindly accept the rapid disintegration of our privacy rights.