15 November 2021 - Enhanced cybersecurity precautions have been an unshakable reality of the widespread shift towards remote working. But for remote document viewers accessing sensitive client data, some of the security measures that clients and e-discovery vendors are pushing may feel eerily like Big Brother.
Whether it’s working under the watchful eye of (multiple) cameras, handing over fingerprint scans and other biometric data or even just having their eye movements tracked, document reviewers working from home are coming under more supervision than ever before.
Last week The Washington Post published a story on this surveillance. The founder of The Posse List/Project Counsel Group provided the reporter some background on the contract attorney industry, and we also put him in touch with a number of contract attorneys. The article can be accessed by clicking here (there are 400+ reader comments, most by contract attorneys, well worth a read). But if the article appears behind the Washington Post paywall and you cannot access it, the full article appears below.
And after the article we have a Postscript with a few of our thoughts on the contract attorney industry.
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Contract lawyers face a growing invasion of surveillance programs that monitor their work
The Washington Post
Reporter: Drew Harwell
November 11, 2021
When she complained, she said, her bosses brushed it off as a minor technical issue, though some of her lighter-skinned colleagues told her they didn’t have the same problem — a common failing for some facial recognition systems, which have been shown to perform worse for people of color.
So after each logout, Anidi gritted her teeth and did what she had to do: Re-scan her face from three angles so she could get back to a job where she was often expected to review 70 documents an hour.
“I want to be able to do the work and would love the money, but it’s just that strain: I can’t look left for too long, I can’t look down, my dog can’t walk by, or I get logged out,” she said. “Then the company is looking at me like I’m the one delaying!”
But for Anidi and other lawyers, they serve as a dehumanizing reminder that every second of their workday is rigorously probed and analyzed: After verifying their identity, the software judges their level of attention or distraction and kicks them out of their work networks if the system thinks they’re not focused enough.
Contract attorneys such as Anidi have become some of America’s first test subjects for this enhanced monitoring, and many are reporting frustrating results, saying the glitchy systems make them feel like a disposable cog with little workday privacy.
But the software has also become a flash point for broader questions about how companies treat their remote workforces, especially those, like contract attorneys, whose short-term gigs limit their ability to push for change. The attorneys also worry that it could become the new norm as more jobs are automated and analyzed: If the same kinds of law firms that have litigated worker protections and labor standards are doing it, why wouldn’t everyone else?
“There’s always going to be a desire to control more of the workplace, just because you can … and because the cost of all the heavy-handedness comes down on the employee,” said Amy Aykut, a contract attorney in the D.C. area.
The monitoring is a symptom of “these pervasive employer attitudes that take advantage of these technologies to continue these really vicious cycles … that treat employees as commodities,” she said. “The irony in this situation is that it’s attorneys, who traditionally advocate for employee rights or justice when they’re made aware of intrusions like these.”
Contract attorneys sift through thousands of documents entered as potential evidence during a lawsuit, redacting sensitive information and highlighting relevant details lawyers may need while arguing a case, and they have become a backbone of the legal economy: Law firms hire them on an as-needed basis — such as when a complicated lawsuit involves lots of internal records or emails — and ditch them when they are no longer necessary.
Legal recruiters say the job’s flexible schedules and outsourced contracts have opened more opportunities for work in the saturated legal profession. But contract attorneys say their short-term contracts ensure they work without benefits, at reduced hourly rates, and with no expectations of job security after the work is complete. Many said they pursued the job only because firms weren’t hiring for the kinds of full-time work they’d need to pay off law school debt.
“An underclass had been created to perform the mundane tasks without the incentive of being mentored and trained for more sophisticated legal work,” one contract attorney in Texas said. “And the members of this class could be discarded as soon as a litigation was over — sometimes literally on a moment’s notice.”
The Washington Post spoke with 27 contract attorneys across the United States who had been asked to use facial recognition software while working remotely. The pandemic pushed many of them out of secure document-review offices and into remote work, and many expected some additional security, since they look at sensitive files for legal cases with strict confidentiality rules.
But most of them hadn’t expected anything like the facial recognition monitoring they’ve been asked to consent to. The software uses a worker’s webcam to record their facial movements and surroundings and will send an alert if the attorney takes photos of confidential documents, stops paying attention to the screen or allows unauthorized people into the room. The attorneys are expected to scan their face every morning so their identity can be reverified minute by minute to reduce potential fraud.
Some attorneys welcomed the monitoring, arguing that they liked trying out cutting-edge software, that the bugs weren’t all that bad, or that the hassle was worth it if they could keep working from home. But many others said the systems were finicky, error-prone and imprecise thanks to general weaknesses in facial recognition systems, which can show wild swings in accuracy based on factors such as a room’s lighting, a person’s skin color or the quality of their webcam.
Lawyers said they had been booted out of their work if they shifted slightly in their chairs, looked away for a moment or adjusted their glasses or hair. The systems, they said, also chastised them for harmless behaviors: holding a coffee mug mistaken for an unauthorized camera or listening to a podcast or the TV.
The constant interruptions have become a major annoyance in a job requiring long-term concentration and attention to detail, some lawyers said. But the errors also undercut how much work they could do, leaving some fearful it could affect their pay or their ability to secure work from the same firms later on.
Several contract attorneys said they worried that their performance ratings, and potential future employability, could suffer solely based on the color of their skin. Loetitia McMillion, a contract attorney in Brooklyn who is Black, said she’d started wearing her hair down or pushing her face closer to the screen in hopes the system would stop forcing her offline.
“It crashes all the time and says it doesn’t recognize me,” she said, “and I want to just tell it: Actually, no, it’s the same Black face I’ve had for a few decades now.”
Some contract attorneys said they felt the burden weighed especially heavily on people of color, who fill an outsize portion of the short-term legal roles. People of color make up about 15 percent of all lawyers in the United States but about 25 percent of the “non-traditional track/staff attorney” jobs, which include contract attorneys, according to recent statistics from the American Bar Association and the National Association for Law Placement.
Attorneys of color also worried that the facial recognition systems’ varying performance on different skin tones left them disadvantaged from the start. One attorney said he filed a complaint with New York City’s Human Rights Commission last year, arguing that he was being denied the right to work by refusing to consent to being monitored. He worries that the facial recognition scans could threaten his legal license or livelihood if it falsely led to accusations that he had compromised client data.
“As a black male in America I am constantly under surveillance the moment I step outside,” he wrote in July to one of the agencies in an email he shared with The Post. “I will not subject myself to this indignity and the invasion of my privacy in my own home.”
Contract attorneys are far from the only American occupation to undergo enhanced monitoring. Delivery workers, call-center representatives and Uber drivers are increasingly assessed by face- or voice-analyzing software, which their employers say can help the companies verify worker identity, performance or productivity.
Those fields have faced their own frustrations: A former Uber driver has filed a legal claim in the United Kingdom alleging that the company’s facial recognition software was racially discriminatory against him and other Black drivers because it worked less effectively on darker skin.
Verificient Technologies, one of the companies selling such work-monitoring software, also offers a similar “online proctoring” service that colleges are increasingly using to monitor students during exams. The systems have led some test-takers to urinate in their seats for fear of being punished or flagged as cheaters if they stepped away and have sparked a backlash on campuses nationwide.
The company’s “on-demand monitoring” software, RemoteDesk, can track workers’ “idle” and “active” time; record their screens and web-browser history; patrol their background noise for unauthorized music or phone calls; and use the webcam to scan a worker’s face or room for company rule-breaking activity, such as eating and drinking or “suspicious expressions, gestures, or behavior.”
Nada Awad, the company’s chief sales officer, said suspicious behaviors include working for too long without a break or looking away from the monitor for extended periods of time. In an online guide on “the ethical complexity of remote workforce monitoring,” the company wrote that its software identifies “various levels of deceit and misconduct based on the guidelines defined by the corporation.”
An example screenshot of the RemoteDesk interface for employers, which the company shared with The Post, logged every online activity a worker had done during the workday, with each classified as “productive” and “unproductive,” as well as an overall “productivity score.” It also showed data on total hours worked and a “webcam feed” that included snapshots of violations, such as when a worker opened a social media website, used their phone or blocked the camera’s view.
Rahul Siddharth, Verificient’s co-founder and operations chief, said the company has seen rapid growth during the pandemic from companies worried about “being hosed” by deceptive or unproductive employees who might be working half-mindedly, slacking off or working two jobs at once.
“Abuse happens, and that’s a fact of nature — not for everyone, but a significant enough amount that companies and employers want to manage it as best they can,” Siddharth said. “It’s not for Big Brother to watch them. It’s to say you cannot be compensated for a two-hour break.".
Attorneys’ document-review work had almost always been an in-person job, and the offices they worked in had strict rules around security. But Cathy Fetgatter, the senior vice president of analytics and managed review services for Innovative Discovery, a legal recruiting agency based in Arlington, Va., said the pandemic changed everything: Every office closed in March 2020, shifting all of the agency’s document-review jobs to remote work.
Their law firm clients were given the option to remotely monitor and verify the identities of those attorneys with facial recognition software, Fetgatter said, and about 5 percent of the agency’s clients have chosen to do so in the past year.
That number is growing. Other firms have opted for even more “robust monitoring,” in which the webcam software looks for other rule-breaking behavior, such as whether anyone else can be heard or seen near the computer screen.
The agency, Fetgatter said, has a database of 10,000 contract attorneys who are assessed based on “performance indicators” that track their demeanor and productivity. She declined to say which facial recognition software attorneys working with Innovative Discovery were expected to use.
The technology isn’t perfect, Fetgatter said: One law firm client recently complained that the number of false positives made it “honestly more of a nuisance than it was worth.” But much of the attorney feedback about the system so far, she said, has “been positive because of how much attention we put on keeping the team engaged.” Attorneys who are uncomfortable with that level of monitoring, she added, can decline the job.
Some attorneys, however, feel like it’s not a real choice. While jobs with the facial recognition requirement are still the exception, many attorneys said they expect that more law firms will grow interested as the technology becomes cheaper and easier to deploy, forcing workers to tolerate the monitoring or lose out on jobs.
Hope Weiner, a contract attorney in New York, said she has embraced the technology, technical quirks and all. Because the software requires the worker to keep their head within a limited space in view of their webcam, she said, “you do find yourself swishing your face around like a tetherball so that the computer does not shut down on you.”
But other lawyers said they felt infantilized or distrusted by monitoring software that gave no weight to their experience or careers. One attorney said the software treated “people who have taken oaths as if they are common criminals.” Said another: “Didn’t my work record speak for itself that I had integrity?”
One 10-year contract attorney in Arlington, whose contract required that he use the security software SessionGuardian, said the minute-to-minute need to be constantly looking at his computer made him feel “treated like a robot.” Another said he felt exhausted after 10 hours of sitting like a “gargoyle,” knowing any shift in position might log him out.
Jordan Ellington, SessionGuardian’s founder and chief executive, said that companies can set their own rules — employee facial scans, for instance, can be as frequent as once a second — and that the enhanced at-home security can be worth it for those frustrated by office work.
“That contract attorney would have otherwise spent time commuting to a location that has cameras and people walking around, looking at screens, to maintain their security,” Ellington said. “Wouldn’t you prefer to save on that commute?”
Some attorneys said they worry that this is only the beginning for work-from-home surveillance. Call center workers in Colombia told NBC News in August that they had been asked to consent to in-home camera monitoring. Google and Microsoft already offer tools that employers can use to automatically gauge their workers’ productivity. And some companies, including Amazon, have considered monitoring workers’ mouse movements and keyboard strokes as a way to detect impostors.
But some attorneys said they see a silver lining in this oversight. Anne Ditmore, a freelance document-review attorney in Dallas, said that at first having her face scanned “felt like I was giving away such a unique identifier, and so impersonal. I felt untrusted.” But she now says she feels a “sense of pride” in contributing to the early days of a technology reshaping how people work.
The boom in facial recognition scans and other productivity software “now makes me work harder and longer than when I worked in an office,” she said. “There is no live human interaction, aside from scheduled video meetings, as there once was between co-workers in an office environment. That saved time is spent working.”
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