Can and Should We Read Job-Security and Labor – Rights within the Concept of Cyber Security?

ByTammy Katsabian.

In November 2017 a bill was tabled before the Israeli Knesset proposing the updating of the legal rule enabling the court to ban the publication of names during a trial. The original rule determined that: “The court is allowed to ban on publishing any material regarding the discussions on court […] in order to protect the security of one of the litigants, the witness, or any other person whose name was mentioned during the trial…”.[1] (emphasis added). The bill proposed updating this original rule, so that “after the term ‘security,’ it will be written ‘including his job security.’”[2] The explanatory notes to the bill noted that employers can easily access past claims of candidates at the labor courts, since these are now openly accessible on the net. This impedes the ability of an employee who sued her previous employer to search for a new workplace, thereby impairing the employee’s basic right to access the court, as well as her right to job security. 

This rule appears to be based on two premises. First, security issues may also refer to job security issues. Second, in the digital age, the threat to security is acquiring a new form. In light of the enormous interest in security matters in the internet age, it is worth considering whether cyber security matters should also refer to job security aspects that are specific to this new reality. In order to answer this question, we must firstly explore the initial notion of “security” and then apply this to the context of cyberspace or the internet age. [3]

As the Copenhagen School argued, “security” is linked to the nation or the state and is a matter of danger, urgency, and survival.[4] However, the term “security” has also been applied to concerns such as theft or fraud that are not literally matters of life and death. During the years, the notion of security was expanded and read as a matter of basic safety, or as Nissenbaum explained: “freedom from the unwanted effects of another’s actions...the condition of being protected from danger, injury, […] and […] threats of all kinds.”[5] Similarly, feminist scholars have extended the term to include an individual’s right to freedom from abuse or crisis.[6]

The modern term “cyber security” appears to have undergone a similar evolution. Traditionally, this term concerned “unwanted disclosure, modification, or destruction of data in a system.[7] Cyber security was mainly a matter of computers and information systems, and accordingly was associated primarily with criminal law or the laws of armed conflict.[8]

As early as 2002, however, Deilbert argued that cyber security is constituted in four distinct domains: national security, state security, private security and network security, each of which has its own threats and regulatory modalities.[9] Nissenbaum later suggested that cyber security should be interpreted as including broader dangers, including racial websites or child pornography, attacks on “critical societal infrastructures,” and “threats to the networked information system itself.[10]

It is appropriate here to consider whether job security and the threat to labor rights in the internet age meet the concept of cyber security, even in its broader interpretation. After all, employers have long been able to control and manipulate employees’ job security, salary, and so forth in a way that may violate their rights, dignity, and basic safety.[11] Nevertheless, the internet age and virtual technology do appear to have strengthened the employer’s ability to manipulate reality.[12]

Scholars argue that employees’ basic rights are under constant threat in the internet age precisely because of the flexible and liquid nature of the internet world.[13] The internet age has generated new forms of work, such as crowdsourcing or the sharing economy, that assert that there is no distinct “employer” or “employee,”[14] thereby curtailing labor rights and job security.[15] Similarly, while the internet age has encouraged the creation of jobs in third world countries, it has also facilitated the exploitation of cheap workforces in these countries, generating new risks and costs.[16] Lastly, the internet age has led to the phenomenon of online shaming and mass supervision of the individual employee by society at large, and not only by the employer. An example of this is the dismissal of employees due to information published about them on social media sites.[17]

These are just a few examples of the potential threats the internet age has created regarding employees’ job security and socioeconomic safety. We indeed appear to be facing a new social problem that has the potential to threaten the safety and security of workers and their families. Accordingly, it may be reasonable to include job security in the concept of cyber security.

At this stage, the reader may well be asking herself why is it important to read security, and in particular cyber security, in a broader way, as including also matters of job security and labor rights. Why can we not have two distinct, yet important, parallel definitions?

I believe that there are two key answers to this question. Firstly, the definition of an issue as a security matter ensures that it is prioritized within the legal and political systems,[18] as evidenced by the current trend in academia and government to devote specific attention to cyber security issues.[19]Secondly, and more importantly, the decision whether to define an issue as a security matter should be determined according to an assessment of the harms against which people have a right to be secured.[20]

Extending the term “cyber security” to include aspects of job security that are unique to the cyber world highlights the fact that we are addressing a social problem that is unique to the internet age. This is presumably the basic premise behind the Israeli bill mentioned in the introduction to this article. The understanding of the importance of this problem prompts us to search for new solutions in order to ensure that workers around the world enjoy job security and basic rights. This concern must certainly be regarded as a public social matter and even as a national concern. Accordingly, it may also be beneficial to define it as a cyber security matter.   

 

[1]   Courts Law, Section 70(D).

[2]   Courts Bill (Amendment – Prohibition of Publication to Protect Employment Security), 5778-2017, P/20/4752.

[3]   The internet age has been referred to by many other terms, many of which focus on the interconnected and fluid reality created by the World Wide Web and virtual technology. Examples include “cyber space” in Lawrence Lessig’s terms; the “software world” in Zygmunt Bauman’s terms; the “network society” in Manuel Castells’s terms, etc. While these terms are not synonymous, for the limited purpose of this article I shall regard them as essentially similar.

[4]   Barry Buzan, Ole Wæver, and Jaap de Wilde, Security: A New Framework for Analysis (Boulder, CO: Lynne Rienner, 1998), pp. 21-41.

[5]   Helen Nissenbaum, ‘Where computer security meets national security,’ 7 Ethics and Information Technology 61 (2005), p. 64.

[6]   See for instance in: Lene Hansen, ‘The Little Mermaid’s Silent Security Dilemma and the Absence of Gender in the Copenhagen School,’ 29(2) Millennium 285 (2000), p. 289:

[7]   CSTB (Computer Science and Telecommunications Board), Computers at Risk: Safe Computing in the Information Age (Washington, DC: National Academy Press, 1991) p. 2.

[8]   Nathan Alexander Sales, ‘Regulating Cyber security,’ 107 Nw. U. L. Rev. 1503 (2013) 1503, 1507.

[9]   Ronald J Deibert, Circuits of Power: Security in the Internet Environment, In Information Technologies and Global Politics: The Changing Scope of Power and Governance, edited by James N. Rosenau and J. P. Singh. (Albany: State University of New York, 2002).

[10] Nissenbaum, ibid., p. 64.

[11] For further elaboration see Guy Davidov, a Purposive Approach to Labour Law (OUP 2016), in Chapter Three.

[12] Phobe V. Moore, Pav Akhtar and Martin Upchurch, Digitalization of Work and Resistance, in Humans and Machines at Work: Monitoring, Surveillance and Automation in Contemporary Capitalism, Phoebe V. Moore,‎ Martin Upchurch, Xanthe Whittaker (eds.) (Palgrave Macmillan 2018) 17, 23; Katherine V.W Stone., From Widgets to Digits (2004).

[13] Kenneth G. Dau-Schmidt, ‘Labor Law 2.0: The Impact of the New Information Technology on the Employment Relationship and the Relevance of the NLRA’ 64 Emory Law Journal 1583 (2015), pp. 1594-1598.

[14] Orly Lobel, ‘The Law of the Platform,’ 101 Minnesota Law Review 87 (2016); Valerio De Stefano, ‘The Rise of the ‘Just-in-Time Workforce’: On-Demand Work, Crowd Work and Labour Protection in the ‘Gig-Economy,’ Comparative Labor Law & Policy Journal (Forthcoming).

[15] Miriam A. Cherry, ‘Beyond Misclassification: The Digital Transformation of Work,’ Comparative Labor Law & Policy Journal (Forthcoming) 19-20; Paul Davies & Mark Freedland, ‘The Complexities of the Employing Enterprise’ in Guy Davidov & Brian Langille (eds), Boundaries and Frontiers of Labour Law (Portland: Hart 2006) 273; Alan Hyde, Working in Silicon Valley Economic and Legal Analysis of a High-Velocity Labor Market (Armonk, NY: M.E. Sharpe 2003). Guy Davidov, ‘The Status of Uber Drivers’ (onlabour. 17 May 2016) https://onlabor.org/2016/05/17/guest-post-the-status-of-uber-drivers-part-1-some-preliminary-questions/

[16] Graham, M., Hjorth, I. and Lehdonvirta, V., ‘Digital Labour and Development: Impacts of Global Digital Labour Platforms and the Gig Economy on Worker Livelihoods’ 23(2) Transfer 135 (2017).

[17] Shlomit Yanisky-Ravid, ‘To Read Or Not to Read: Privacy within Social Networks, the Entitlement of Employees to a Virtual Private Zone, and the Balloon Theory,’ 64(1) AM. U. L. REV. 53 (2014). See also Jon Ronson, So You’ve Been Publicly Shamed (2015).

[18] Hansen and Nissenbaum, ibid., p. 1156.

[19] See for instance the establishment in Israel of the National Cyber Directorate, as well as the establishment of cyber research centers at several universities.

[20] Nissenbaum, ibid., p. 64.