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Computers, Privacy & the Constitution
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Collective Bargaining as an Anti-Surveillance Strategy (Second Draft)-- By MichaelSosnick - 20 Mar 2025Forced into Surveillance at WorkWe scroll Instagram on our smart-ass phones. We share Google Photos on our laptops made by the King of the Undead-now-Dead. These are choices—like ordering a Big Mac, bad for our health, and like driving without a seatbelt, bad for our safety. Just like eating the Big Mac, we make these choices out of (perceived) convenience, and implicitly choose to suffer the consequences down the line. As a lawyer, using Microsoft will technically be a choice, too. But my employer uses Microsoft, so opting out would not be merely inconvenient; I would likely be fired. As an individual employee, the choice appears not to be between privacy and convenience. Rather, it is between privacy and a paycheck. The latter is an easy choice, albeit one that the firm forces me to make. For many vulnerable workers, the effects of algorithmic management techniques are felt particularly acutely. Amazon warehouse workers are pushed into working at a rate that destroys their bodies. Tesla employees have to forego bathroom breaks to hit their closely-monitored quotas. Wearables go so far as to track employees’ moods, creating the potential for thought crimes prosecuted by the dictatorship of the firm. Unsurprisingly, workplace surveillance and algorithmic management are linked to negative health and safety outcomes and racial discrimination. Because so many of us are coerced into using intrusive technology at work, our choices off the clock can only get us so far. And as individuals we lack the power to change our employers’ practices—much less Google’s. Unions, though, can resist these technologies at work and spur pushback beyond the workplace.Bargaining and Striking for PrivacyUnions can be a vanguard for privacy just as they have been vanguards of many movements, including responses to technological change. Unions have already endorsed legislative proposals limiting workplace surveillance, such as California SB 238 and the Stop Spying Bosses Act. Beyond lobbying, unions serve a vital civic education role. Through unions, workers can disseminate information about the harms of surveillance technology. Naturally, this will start with the context of the workplace. But that awareness of workplace surveillance will naturally begin to extend to an understanding of how people are surveilled off the clock as well. Once the education campaign is underway, employees can act. Unions can and should bargain collectively over the ways in which intrusive technology is used on them. Those wins can ripple throughout our communities, too—catalyzing a greater pro-privacy shift. Bargaining over particularly blatant forms of surveillance is not particularly novel. In 1997, the NLRB held that an employer that unilaterally installed CCTV had a duty to bargain with the union. And in their latest contract with UPS, the Teamsters won a ban on driver-facing cameras and limitations on the use of other technology for discipline. Yet surveillance by cameras is obvious. The ongoing surveillance of Google and Microsoft services used by desk workers, though, is far less intuitive. Surveillance technology at work is unlikely to generate the as much ire among employees who use the same services at home. Sure, these workers are vaguely aware of the sinister capacity of Outlook, but without a concerted campaign we will continue to be forced to use it. Workers must publicly recognize the harm caused by these services and fight back. Big Tech unions are well positioned to combat the invasive platforms we use in our private lives. The Alphabet Workers Union has won some important victories in recent years. If they take a stand against their own surveillance in the workplace, workers at other big tech firms may follow suit. If Google, Microsoft, and Apple employees all fight for privacy at work, perhaps non-employees will take note and public opinion will turn against these companies’ spying on the world. Workers can engage in a protected strike over egregious privacy issues, too, as mandatory subjects of bargaining. And they should. One of the targets of the recent Writers’ Guild strike was AI encroachment. While these AI issues were not discussed in privacy terms, the strike is evidence that unions have the capacity and potential willingness to hold companies to task over their use of privacy-disrespecting technology. These strikes will serve a further public education purpose, as they can clue the general public—most of whom are, unfortunately, not in a union—about the destructive potential of the same services they use both at work and at home.HurdlesEmployers will drag their heels. Even though plenty of free and open source software exists, Google and Microsoft have made themselves the path of least resistance for corporations. Alas, arguing that Google Docs is akin to CCTV will be an uphill battle, particularly to a Trump NLRB. But under a proper interpretation of the law, because of these services’ impact on the terms and conditions of employment, they should be considered mandatory subjects of bargaining. Beyond labor law, one of workers’ biggest obstacles to fighting algorithmic management is algorithmic management itself. Surveillance technology severely impedes workers’ ability to organize. Employers use technology to chill organizing activity through keystroke loggers, cameras that monitor employee interactions, and quotas that make chat breaks impossible. Where workers cannot communicate, they cannot organize; this is organizing 101. Former NLRB General Counsel Jennifer Abruzzo recognized the chilling effect of surveillance technology and urged the Board to find presumptive violations of the Act where the use of technology reasonably interferes with workers’ Section 7 rights. But Trump’s NLRB (currently without a quorum anyway) is unlikely to take such an expansive view. Even if it did, the Board’s weak remedial powers and glacial pace will provide little deterrent effect. If unchecked, workplace surveillance technology will further suppress already record-low union density, without unions to fight it. I wish I had a better answer for how to escape this death spiral. For now, union leaders should run significant education campaigns and fight surveillance tooth and nail. Unions, however weakened and adrift they may be, still have the potential to drive that change.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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