Implicit Informed Consent

Some forms of consent are implicit rather than explicit, and it is plausible to think that we can implicitly consent to certain instances of covert surveillance. It can be argued that by choosing to drive rather than take a bus or a train, I implicitly consent to allow the police to use radar detection devices to measure the speed at which I am driving. The police do not explicitly ask for my consent to use radar detection devices, but I continue to drive, accepting that these are used and accepting that the precise location of these devices is usually unknown to me. So it seems that I implicitly consented to a form of covert surveillance.

Appeals to implicit consent in monitoring arrangements in the workplace could take a number of forms. A very strong form would be an appeal to the claim that workers implicitly agree to have all aspects of their work covertly surveyed, simply by taking the job that they have taken. This strong claim doesn t strike me as very plausible. Employees often believe that they are entitled not to have their e-mail monitored , and it seems implausible to think that they would have come to hold such beliefs in spite of the existence of such an implicit agreement.

A more plausible form of appeal to implicit informed consent is an appeal to the claim that employees implicitly agree to have their workplace behaviour covertly monitored in very specific circumstances. For example, circumstances where an employer has a reason to believe that certain employees may be acting against the economic interests of the employer, or acting in a highly immoral or illegal way. Such cases might include situations where it was reasonable to believe that an employee was leaking confidential information to a corporate rival, harassing a fellow employee, or using the workplace to conduct criminal activities. While I accept that it is possible to implicitly consent to some forms of surveillance, it seems that we should only allow appeals to implicit consent in circumstances where there are compelling reasons to think that explicit consent could not be obtained.