evidence employment
Remotely (off-premises) recording my girlfriend&#39;s office via a WebRTC webcam chat service
<p>My girlfriend A suspects her office is being searched for confidential information on a regular basis by a former colleague X who moved to a different department.</p>

<p>I am not going to act on this, so save yourselves from all the 'I am not a lawyer' phrases - this is purely to understand how people around the world would answer the following questions.</p>

<hr>

<ol>
<li>I ask her A to chat with an accomplice B (B is also being unwelcomedly frequented by the same person X) using a WebRTC video chat service for which their company firewalls do not auto-issue a fake TLS certificate for MITM-ing.</li>
<li>I join in on their chat room. They are both aware of and welcome my intentions.</li>
<li><p>I ask them to:</p>

<ol>
<li>leave their web browser chat windows open all day long and also 'forget' to close them when they leave the office  </li>
<li>hide their browser windows using a simple application</li>
</ol></li>
<li><p>and remotely record all privacy violations by X in offices of A and B (again by complete consent of A and B) outside the company of X, A and B</p>

<ol>
<li>in video</li>
<li>in audio.</li>
</ol></li>
</ol>

<hr>

<p>Please state your country of workplace(s) and comment on which points listed above you think is within limits and also answer the below questions:</p>

<ol>
<li>What could be done with the recordings?</li>
<li>If the recordings are not permissible as evidence, how else would you prove the wrongdoings by X?</li>
<li>In the worst case, how strong a legal defense would it be for A and B to
<ol>
<li>deny they were aware I was even there in the chat room with them or operated the WebRTC service</li>
<li>claim they cannot be held responsible for a third party's actions</li>
<li>claim they were not even aware their chats could be remotely recorded</li>
<li>claim they were just chatting because it was fun and saved them from leaving their desks</li>
</ol></li>
</ol>

<p>with concrete references to relatable lawsuits, news articles, legal cases and own experience.</p>

<hr>

<p>Please assume there is no-one in the company of X, A and B that would believe A and B over X! So contacting people in the same company is a losing bet.</p>

<p>I'll take an Australian perspective on this. State law will refer to the law in New South Wales.</p>

<h2>Workplace surveillance law</h2>

<p>An employee does not generally have the right to surveil other employees in their place of work, as such surveillance must be agreed to and the subjects must be informed as per the <em>Workplace Surveillance Act 2005 (NSW)</em> ("the Act") <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/wsa2005245/s10.html" rel="nofollow">s 10</a>. </p>

<p>Generally, employees will agree to some kind of surveillance as a term of their employment contract.  These contracts are generally drafted without reference to the entity conducting the surveillance ("you to electronic monitoring, including video, keystroke logging", etc). While it's omitted, a court is almost certainly going to find that this agreement extends only to surveillance conducted by or with the permission of the employer.</p>

<p>Essentially, you're going to violate Section 10 of the Act unless you are permitted by the employer to conduct surveillance <em>and</em> the employee has agreed to such surveillance.</p>

<hr>

<blockquote>
  <ol>
  <li>What could be done with the recordings?</li>
  </ol>
</blockquote>

<p>You could most likely <em>not</em> use them as evidence, as Section 138 of the <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s138.html" rel="nofollow"><em>Evidence Act 1995</em> (NSW)</a> explicitly exclude evidence obtained illegally. However, there is judicial discretion in admitting such evidence, subject to specific tests.</p>

<p>This would turn on the specifics of the case, the evidence, and the exact nature of the wrongdoings you uncover.</p>

<p>Blackmail is illegal, so while you could do that, it's not really something you should do.</p>

<blockquote>
  <ol start="2">
  <li>If the recordings are not permissible as evidence, how else would you prove the wrongdoings by X?</li>
  </ol>
</blockquote>

<p>Advise the employer of your concerns and ask them to conduct the surveillance.</p>

<blockquote>
  <ol start="3">
  <li>In the worst case, how strong a legal defense would it be for A and B to  </li>
  </ol>
</blockquote>

<p>&nbsp;</p>

<blockquote>
  <ol>
  <li>deny they were aware I was even there in the chat room with them or operated the WebRTC service</li>
  </ol>
</blockquote>

<p>Well, you've said that they are both aware of and welcome your intentions, so denying that you were there in the chat room after you direct them to leave the chat windows open would be <em>perjury</em>.</p>

<blockquote>
  <ol start="2">
  <li>claim they cannot be held responsible for a third party's actions</li>
  </ol>
</blockquote>

<p>They can, and will be held responsible for your actions if they're aware of your intentions and welcome them. Also, they're probably responsible for activity on the work device by company policy.</p>

<blockquote>
  <ol start="3">
  <li>claim they were not even aware their chats could be remotely recorded</li>
  </ol>
</blockquote>

<p>This is going to be likely to be subjected to a <em>reasonable person test</em>. I'd say that a reasonable person would know that the internet can always be recorded, and at the very least that their employers can and probably do monitor their internet usage.</p>

<blockquote>
  <ol start="4">
  <li>claim they were just chatting because it was fun and saved them from leaving their desks</li>
  </ol>
</blockquote>

<p>That's not really a defence to assisting someone in violating the Act.</p>

<hr>

<p>In summary: this is a <em>bad</em> idea, you <em>probably won't</em> be able to use the recordings as evidence in court, and you'll probably be found in violation of the Act.</p>
