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105 Calif. L. Rev. 735 (2017)
Limitless Worker Surveillance

handle is hein.journals/calr105 and id is 759 raw text is: Limitless Worker Surveillance Ifeoma Ajunwa,* Kate Crawford,** and Jason Schultz*** From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to new apps that quantafy the productivity of workers, and to the collection of health data as part of workplace wellness programs, American employers have increasingly sought to track the activities of their employees. Starting with Taylorism and Fordism, American workers have become accustomed to heightened levels of monitoring that have only been mitigated by the legal counterweight of organized unions and labor laws. Thus, along with economic and technological limits, the law has always been presumed as a constraint on these surveillance activities. Recently, technological advancements in several fields-big data analytics, communications capture, mobile device design, DNA testing, and biometrics-have dramatically expanded capacities for worker surveillance both on and off the job. While the cost of many forms of surveillance has dropped significantly, new technologies make the surveillance of workers even more convenient and accessible, and labor unions have become much less powerful in advocating for workers. The American worker must now contend with an all-seeing Argus Panoptes built from technology that allows for the trawling of employee data from the Internet and the employer collection of productivity data and health data, with the ostensible consent of the worker. This raises the question of whether the law still remains a meaningful avenue to delineate boundaries for worker surveillance. DOI: https://dx.doi.org/10.15779/Z38BR8MF94 Copyright © 2017 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Fellow, Berkman Klein Center at Harvard University; Assistant Professor, Cornell Industrial and Labor Relations (ILR) School; Associate Faculty, Cornell Law School. ** Visiting Professor, MIT Center for Civic Media; Principal Researcher, Microsoft Research; Senior Fellow, NYU Information Law Institute. *** Professor of Clinical Law, NYU School of Law. First, the authors wish to thank the editors of the California Law Review for their capable and fastidious editing assistance. The authors also wish to thank the attendees of the 2016 Privacy Law Scholars Conference at George Washington University and the 2016 Law and Society Association Conference in New Orleans. Special thanks to Professors Andrew G. Ferguson, Pauline Kim, and Brett Frischmann. We also thank Microsoft Research New York for funding Professor Ajunwa's initial research on these topics. 735

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