Thursday, April 20, 2006

Fading Telephone Privacy at Work

Over the last century, improvements in technology have dramatically changed our expectation of privacy when making a telephone call. In the early days of the American telephone system, private phone calls were virtually nonexistent. It was cheaper for the phone companies to install and operate shared lines, which in turn made them less expensive for consumers; as late as 1950, 75 percent of all of the phone lines in the United States were party lines, shared by as few as two families or as many as twenty-four.

To listen in on your neighbor's phone call, all you had to do was pick up your receiver. This was often regarded as a "feature" rather than a drawback; long before the phone companies introduced three-way and conference-calling technology, party lines enabled a number of neighbors to share the local gossip. The inherent appeal of party line technology was demonstrated in the 1980s, when phone companies introduced multiperson chat lines. The forerunners of today's Internet chat rooms and IRC channels, the party lines were best known for making it possible for teens to run up sometimes phenomenal phone bills.

In the latter half of the twentieth century, our privacy expectations regarding phone calls changed. The installation of advanced switching technology made it possible to dial numbers directly anywhere in the country without the assistance of an operator, who might be tempted to listen in. In addition, as the cost of telephone lines and equipment steadily dropped, the number of single-user lines increased, and consumers proved increasingly willing to pay for them. Over the course of a generation, we came to expect that a telephone conversation was as private as a face-to-face chat in our living room.

Our privacy expectations regarding phone calls have been reinforced by the actions of the Supreme Court and Congress. After more than forty years of decisions upholding wiretapping because it did not involve a physical invasion of space, in 1967 the Supreme Court reversed itself in Katz v. United States, holding that the constitutional protection from search and seizure protects people, not places. If we make a telephone call, the Court said, under circumstances that indicate a reasonable expectation of privacy, then government agents cannot intercept it without a warrant. Congress's Omnibus Crime Control and Safe Streets Act of 1968 was more of a mixed bag from a privacy point of view: While it did permit governmental agents to conduct wiretaps for the first time since the passage of the Communications Act in 1934, it also imposed strict requirements on the issuance of wiretap orders.

To a large degree, we have extended our expectation of privacy for phone calls to the workplace. For example, when we pick up the phone to make a call, we assume that no one is secretly listening in on an extension. In fact, one recent privacy poll found that 81 percent of us believe that employers have no right to monitor our phone calls at work.

But employers do have a right to monitor our phone calls, so long as the monitoring is within "the ordinary course of business," which is why we so often hear the phrase, "This call may be monitored to ensure quality service" or some similar variation. Your employer can also monitor your phone calls when you give either explicit or implied consent. However, if your employer determines that you are making a personal call, he or she is supposed to stop any monitoring. As some commentators have pointed out, however, that loophole can give an employer 2–3 minutes of lawful eavesdropping. And not surprisingly, there is unequivocal evidence that some employers do not hang up at all.

In its 2001 annual survey of workplace monitoring and surveillance, the American Management Association estimated that 12 percent of the major U.S. corporations periodically record and review telephone calls, while 8 percent store and review voice mail messages. A far higher percentage (43 percent) monitor the amount of time that employees spend on the telephone, and check the phone numbers that have been called. Employers are motivated primarily by the impact excess phone calls can have on productivity, but also by concerns over the quality of customer service, possible loss of trade secrets, and security issues.

Tracking the phone numbers that an employee calls can be as simple as reading the monthly phone bill; a slightly more aggressive step involves installing a pen register, which records every number dialed from a particular phone. However, as computers and phones become increasingly integrated, more and more employers will be able to use PCs and software to track employee phone usage and produce detailed reports of all telephone activity.

According to Telemate.Net, one manufacturer of telephone monitoring software, over 20 percent of all workplace calls are personal. The company sells a software product called Telemate Call Accounting that a company can use to track all of the data generated by the company's telecom resources. The software allows management to identify "the calls and call patterns placed by individuals, teams, departments, and the organization." This software produces reports that:
  • Identify call volume, topics, destinations, sources, length, frequency and peak calling times.
  • Track account activity and build a marketing prospect/customer database.
  • Classify phone numbers to identify potential productivity distractions.
  • Integrates electronic calling card and DISA usage data to detect access code theft or fraud.
  • Identify inbound callers to spot abuse or incorrect routing of 800 calls.
Employers are particularly interested in such software because it helps them avoid concerns about the improper interception of employee telephone calls under the Omnibus Crime Control Act and the Electronic Communications Privacy Act; all the software does is analyze patterns of phone usage.

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