By Allan McCay -
Workplace surveillance is starting to become more intimate. This development has implications for lawyers as it can potentially generate more work for them with the emergence of new issues for clients that will require legal advice or representation, human rights issues, and perhaps even change the way that lawyers bill.
One example of an increased capacity to monitor employees is the move towards monitoring employees’ activities on their computers as they work from home. However, surveillance techniques are now going beyond a focus on computers in people’s homes to finding their way into workers’ brains.
Australia has entered an era of workplace neuro-surveillance. In early 2015, the Sydney Morning Herald reported on the use of technologies to monitor the brains of mineworkers for alertness to minimise the risk of accidents at work.
The relevant technologies with this capacity are called “neurotechnologies” – which is a wide category of devices that monitor and/or influence the brain or peripheral nervous system for a variety of reasons, including workplace and therapeutic ones. Perhaps the best known backer of neurotechnology is Elon Musk whose company Neuralink is undertaking clinical trials in which they implant devices into the skulls and brains of people with forms of paralysis to enable them to control external devices by thinking rather than using their bodies.
Musk’s interest in neurotech has inspired other investors and this has created a vibrant sector of the economy. There are non-invasive forms of neurotechnology that do not require surgery and only require an external device such as a headset to read from the brain. These forms of neurotechnology are now used in some workplaces, for instance mines, for brain-monitoring. Known as EEG (electroencephalogram) headsets, these devices monitor the neural correlates of states such as fatigue, attention or stress allowing inferences to be made about the mental states of workers.
So, why does this matter for lawyers?
Stop looking at my brainwaves!
Some employees may not be happy for their brains to be monitored and they may feel aggrieved if this is a requirement, particularly if the device provides information not just to them, for instance alerting them if they get drowsy, but to their boss as well.
I recently considered similar issues with employment law specialist Professor Joellen Riley Munton. We concluded that under the current Australian law, there may be circumstances where it may be legal for a boss to require that an employee have their brain monitored while they work.
However, the boundaries of legality may be tested and disputes may arise over the way captured brain data is retained or used, and there may be disputes about forms of neuro-discrimination. In the foreseeable future, there may be new legislative responses to workplace neurotechnology. I recently gave evidence on neuro-surveillance before the Legislative Assembly Economy and Infrastructure Committee on the Victorian Parliament’s Inquiry into workplace surveillance. These issues and potential developments may create more work for lawyers, especially as Australia has a very strong neurotech ecosystem.
Human rights
Another reason why workplace brain-monitoring might be of interest to lawyers relates to human rights. The global human rights framework was created shortly after World War II, and some have questioned whether it is still fit for purpose given advances in neurotechnology. This has often been characterised as a debate about “neurorights”. Various organisations, such as the United Nations Human Rights Council’s Advisory Committee and the Australian Human Rights Commission, have published reports considering the implications of neurotech. The Chileans have even changed their Constitution to recognise mental integrity in addition to physical and provide for the protection of brain activity.
It is worth noting that Australia is currently considering its human rights framework and the question of whether an Australian Human Rights Act should be introduced. An international group of scholars, which I am a member of, made a submission to a related review suggesting that it is worth bearing in mind the advances in neurotechnology in deciding what to do.
Billable units of attention and beyond
Finally, many lawyers are employees, and they are likely to have clients. Might clients or partners in law firms want their solicitor’s brains monitored?
I remember filling out timesheets when I was a commercial litigator, so I am aware of the pressure to bill. I later found out who was responsible for that misery. The “billable hour” metric, so widely adopted by law firms, was initially client-driven—a response to demands of in-house counsel in the 1950s.
Might neurotech companies start to find the billable hour metric crude and ask for their technology to be incorporated into billing practices instead?
Some brain-monitoring devices purports to be able to monitor for levels of attention. Clients, for instance in-house counsel in neurotech companies, might suggest that lawyers should only bill for when they are paying full attention to their file. Perhaps lawyers could switch to “billable units of attention”, a term I introduced in a report on neurotech for the Law Society of England and Wales.
But for now, this is sounding a bit dystopic. Whilst it might be reasonable for brain-monitoring to be used to prevent workplace accidents, the productivity dimension might be a step too far.
Furthermore, although one may be able to adopt a poker face in a casino (or with one’s lover according to Lady Gaga), it could be harder for lawyers or other workers to affect a “poker brain” in order to conceal their mental state from employers’ neural devices, and this increased transparency could be significant as brain-monitoring capacities increase.
To what extent should employers have access to their workers’ internal worlds? We might ask what kind of workplace environment and broader society would neuro-surveillance create. Would monitoring workers’ brains be consistent with maintaining their freedom of thought, mental privacy and dignity?
Advances in neurotech might provide professional and economic gains for some lawyers but perhaps one day the privacy and other losses might outweigh the benefits. It’s worth lawyers giving workplace neuro-surveillance some unmonitored thought now.
