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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 quantify 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 D 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 Caifornia 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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