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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
* 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.


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