Privacy Talk with Ashley Gjøvik, JD, Apple Whistleblower and A.M. Gjovik Consulting, LLC:What did you learn about employee privacy rights in the United States through this process?
“This interview recorded on 8th November 2022 is talking about employment privacy and human rights.”
Kohei is having great time discussing employment privacy and human rights.
This interview outline:
- What did you learn about employee privacy rights in the United States through this process?
- You brought your concerns to other countries?
- What did you learn about employee privacy rights in other countries?
- How can US laws be improved?
- What did you learn about employee privacy rights in the United States through this process?
Ashley: Yeah, and I have to admit, I didn’t know much about employee privacy rights and law before I spoke out, which I guess was kind of dangerous. To me, it just seemed like common sense that an employee should be able to protest these types of invasions of privacy.
Apple pestering me to take detailed scans inside my ears made my skin crawl, taking secret videos of me inside my bathroom also just seemed inherently wrong. But after Apple came out claiming this is why they fired me. Now it’s a legal matter. So I had to start researching the law to figure out what my best arguments are.
And, you know, I can’t just say oh, it seems wrong, like I actually need to cite stuff. So I started digging. And my lawsuits are really complicated and pro se, it’s just me. It was a lot of original research. And as I began researching, I was really astonished to see how many protections there actually were in the state of California in the United States.
And there’s protections at the federal level through our National Labor Relations Act. So employers can’t even, you know, create the impression of surveillance while employees are engaged in protected activities, like maybe talking about forming a union or asking for improved work conditions.
But California really went above that. They actually have a constitutional right to privacy that extends to private employment, which I was very impressed by and helps my case. So article one, section one of the California Constitution provides that privacy is among the California people’s inalienable rights .
The Constitutional privacy provision is self-executing, confers a judicial right of action on all Californians. Privacy is not protected merely against state action, it is considered a legal right which may not be violated by anyone, like an employer. I was like, oh, that’s awesome. That’s amazing. I mean, this is common sense, right?
It should be a constitutional right. It should apply to all of our dynamics and relationships. I was really happy to see it included in California’s constitution and their cases. The legislative history, too.
There is the right to privacy, the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communication, our freedom to associate with the people we choose.
It prevents the government and business interests from collecting and stockpiling unnecessary information about us, misusing information gathered for one purpose in order to serve another or to embarrass us.
So I was like why are these employers doing this in California? You know, these big tech companies, a lot of them do this kind of stuff.
It was very hypocritical for Apple too, with Apple’s marketing stance about privacy. But the law is so clear that we should have rights around this stuff. And there’s case law going back decades protecting employees from retaliation for protesting certain invasions of privacy.
Even if they signed a contract saying they would do prior things like polygraph tests, videotaping in locker rooms and bathrooms, tracking GPS of employees, other similar circumstances. There’s also state labor codes protecting employees from videotaping in very private situations.
It’s really interesting to me because you know, the prevailing view in Silicon Valley is really against the employees who signed that contract. And even if that contract is, you know, facially illegal, the norm is kind of like, well, they signed it and they got a big paycheck, o they waived all of their rights. And that’s just the way it is. it’s that kind of mentality.
And here, I’m looking at this law that’s directly contradictory to that. So even if you sign a contract, you can still protest, you have this constitutional right that still protects you.
So essentially, some invasions of privacy, even if they’re in a contract, it’s invalid under public policy. It’s essentially preempted by our Constitution. That’s remarkable.
Kohei: I see, yeah, it’s very controversial in this moment, I think the tech company has been like, a little bit. It’s been firing this moment, and it’s been a very difficult situation in tech surging in the market, but now it’s been shrinking in a moment. It’s been a stock price and there are any concerns.
So that’s direct to the other employment conditions that it’s been very important notice here as well. So on some articles, you have tried to bring your concerns to the other country, some of the European countries as well. So could you tell us why you decided to go there then also, what did you do there? So please tell me.
- You brought your concerns to other countries?
Ashley: Yeah, so when I received Apple’s position statement in March, saying all this, this is why we fired her. I really couldn’t believe it. I was reading. It was so crazy to me that they would justify a termination on protesting invasions of privacy and share that justification with the governments. That really made me feel like they do not care about employee privacy at all.
And I found it so unsettling and hypocritical. During my research, I discovered far more protections of employee privacy in other countries, and I know Apple has offices in all these European countries, and I know that they do some of this same weird stuff to them, hearing from the teams I’ve worked with and talking to them through the years.
So I decided I’ll share my complaints and what happened with me and see if they investigate. Maybe they can go to those offices, ask questions, try to figure out what’s going on. And if they happen to find the same issues or other issues, their laws are so much stronger, maybe they’d be able to act in the US in California wouldn’t.
Because again, when I get this letter from Apple to the government saying, oh, yeah, this is what we fired her,it’s fine. I’m getting worried if our government will actually do anything, even if the laws are on my side, because Apple apparently thinks that that’s not a problem. That’s their legitimate justification.
So some of them got , either kind of dismissed or paused until like, you know, someone could come up with a complaint of someone that’s there. But as far as I know, Germany is still investigating and there’s a big office there that per LinkedIn thatoes a bunch of facial biometrics work. So I’m very interested to see what comes with that.
Kohei: Understand. I think biometric data is an important part of privacy related topics all over the world. Especially under the European regulations. So what did you think about your experience about employment privacy rights in other countries?
- What did you learn about employee privacy rights in other countries?
Ashley: I read a lot about GDPR and GDPR says on employment relationships that employee to employer consent on certain matters of privacy must be freely given specific, informed and unambiguous, consent is not freely given.
There’s a clear imbalance of power between the data controller like an employer data subject like an employee. The article 29 Working Group talks about this at length and they essentially say given the dependency that results from the employer and employee relationship, it is unlikely that the data subject employee is able to deny their employer consent to data processing without experiencing a fear or a real risk of detrimental effects as a result of the refusal.
So what they’re essentially saying is an employee cannot consent. Even if they said they consented, it’s not consent. It’s clear, because it’s such an unequal bargaining power, and that really comes to play with matters like biometrics andinvasions of privacy like certain videos and optical surveillance.
So ultimately under GDPR, and especially in France and Germany with their own national laws, the government generally believes that employees can’t consent. It’s just they don’t even recognize it. There’s wonderful discussion in that working group about this, that I was very impressed by.
Kohei: Yeah, I think that in a different country has been different regulations from the background or cultures or any government reactions. In this case, maybe you mentioned the US State’s law has been some of the issues so how they can improve the regulatory requirements under these conditions?
- How can US laws be improved?
Ashley: So I think California has done really progressive work about the constitutional right to privacy that not many if any other states have within the United States. There’s something to learn there. Illinois, in our federation also has made great leaps around biometrics protections.
The other states haven’t though, and applying this progress to more states or at a federal level will be important. I think there’s also a lot to learn from GDPR and those working group discussions.
While the GDPR administration might not be perfect, there’s a lot of wisdom in the policy and the process they’ve gone through to get there which could inform US lawmakers. They don’t have to start from scratch.
There’s so few labor protections in this country overall. Views of the employment relationship are often quite disrespectful and dismissive towards employees.
If we can move to a more honest view of employment relationships, like what I was just mentioning, with the GDPR, article 29 Working Group, that’s a first step in looking at how we carry over some of the same protections and start building similar practices that they have in Europe.
Kohei: So now we jump to a little bit different topic. So you are working on some great projects, one is the Great Fire and Apple Censorship. So could you tell us about this project a little bit so how does it connect to privacy?
Please contact her direct if you want to reach below.
https://gjovik.co/home/contact/ or ashleymgjovik@protonmail.com
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