Explicit Informed Consent

Framing our discussion in terms of consent has the effect of drawing our attention to the distinction between overt and covert surveillance; a distinction that tends to get overlooked in discussions of electronic monitoring in the workplace that focus directly on the issue of privacy. To a first approximation , it seems that employees can informedly consent to overt surveillance, but not to covert surveillance, which they cannot be properly informed about. ^[8] In the next section of this chapter, we will see that it is sometimes possible to implicitly consent to covert surveillance, however. It also seems that employees and employers are entitled to develop consenting relationships that involve explicit electronic monitoring. As long as employees are aware of the nature and extent of electronic monitoring in the workplace, and as long as they consent to these arrangements, then electronic monitoring is ethically acceptable, or so this line of argument leads us to believe.

An employee could try to argue that he or she only consents to some aspects of employment and not to others, that he or she consents to undertake a job and tolerates electronic monitoring as part of that job, without actually consenting to that monitoring. But this seems like saying that the employee consents to a painful medical procedure without consenting to undergo the pain involved in that procedure. Although the thought that an employee could consent to some aspects of a job, but not to others, does seem somewhat implausible, there is a related but more plausible line of argument to be discerned here. This is an argument that questions whether some of the employees who resent the monitoring that is involved in their job have genuinely consented to that job in the first place. The achievement of effective informed consent requires that the person attempting to provide consent be realistically able to choose not to provide consent. You are not genuinely consenting unless you can also decide not to consent. ^[9] So, employees can sometimes argue that although they agreed to accept a job that involved electronic monitoring, knowing that it did involve electronic monitoring, they did not genuinely consent to accept such a job because they had no realistic alternative but to accept that job. In the majority of cases, employees require work because they require food and shelter and so on. Given their training and skills, there may only be certain jobs that they are capable of holding. If they have no realistic alternative to accepting the job that they have, then they did not genuinely consent to accept that job. To assess the effectiveness of particular uses of this line of argument, we need to know what the viable alternatives that a given worker has to continuing in their current job, if any.

Miller and Weckert (2000) briefly consider the place of consent in arguments about the ethical status of electronic monitoring in the workplace. They are dismissive of appeals to consent on two grounds. First, they note that not all employment relationships are, in fact, consent based; some employment relations amount to economic coercion. Second, they note that there are limits to the range of relationships that we would regard as ethically acceptable, even if these are grounded in consent. As Miller and Weckert (2000) point out, a master-slave relationship that was based on consent would not be generally regarded as ethically acceptable.

Both of the above points are right, but neither is very telling. While it is true that some employee-employer relations amount to economic coercion, this does not alter the fact that many workplace relations are not coercive. Nor does it alter the status of consensual interpersonal relations as a regulative ideal in Western societies . ^[10] The fact that some workplace relations are not consensual does not diminish the importance of consent as a precondition to employment any more than the fact that some medical operations are conducted without consent would diminish the importance of consent in medicine (which, of course, it does not). It is not easy to imagine that someone would rationally and informedly consent to be a slave, but if this actually did happen, then it seems that Miller and Weckert would be right to hold that this would not make it ethically acceptable for that person to be kept in slavery. It seems that there are limits on what one ought to be allowed to consent to. But the fact that Miller and Weckert (2000) pick an example as extreme as slavery in their attempt to highlight the existence of such limits, is indicative of the low degree of relevance of these limits to the subject at hand. One can consent to have a surgeon amputate one s leg, and one can consent to form a legally binding relationship with another person that can involve them having the right to own half of one s assets ( marriage ). These consensual acts are usually regarded as ethically acceptable. Consenting to work in an office where one s e-mail is monitored seems much less problematic than either of these cases and quite benign compared to the extreme case of slavery.

^[8] It is difficult, but not impossible , to reconcile omissions of relevant information with effective informed consent. I consider this possibility, in the context of a discussion of informed consent to social science experiments, in Clarke (1999).

^[9] We can see the importance of this consideration in certain medical-legal cases in which patients allege that effective informed consent was not provided because they were not provided with relevant information regarding the medical procedure that took place. In such cases, a possible line of defence that doctors can appeal to is to argue that the patient in question would have had to have undergone the procedure regardless of whether they had been in possession of the information that was withheld. Because a choice was not genuinely available, informed consent was not necessary. This is one of the lines of argument that was used by the lawyers representing Dr. Chappel in Chappel v. Hart (High Court of Australia, 1998).

^[10] The value of consent is deeply embedded in the dominant ideology of Western societies (Kleinig, 1982).