Findings
4 Covert monitoring
Covert monitoring is where the laws are strictest: a magistrate's authority in New South Wales and the ACT, documented suspicion in Germany, reasonable grounds of misconduct in Connecticut, and an exception for suspected crime or gross misconduct in the ICO's guidance.
For counsel: What authority, suspicion or ground stands behind running this without the staff knowing, and who signed it off?
Where it comes from, location by location
- Covert monitoringstatutory requirementNo covert surveillance of employees at work without a covert surveillance authority from a Magistrate; surveillance without the notice Part 2 asks for is covert. NSW WSA s 19NSW WSA s 22
- Covert monitoringverification requiredNo communication, publication or possession of records obtained by a device used outside the conditions of the Act. NSW SDA s 11NSW SDA s 12NSW SDA s 14
- Covert monitoringstatutory requirementNo covert surveillance of a worker without a covert surveillance authority from the Magistrates Court. ACT WPA s 35
- Covert monitoringstatutory requirementMonitoring without prior written notice only on reasonable grounds to believe employees are breaking the law or others' rights, or creating a hostile workplace, where monitoring may produce evidence. (the replacement text takes effect 1 October 2026 (Public Act 26-73); before that date it is not in force) Conn. Gen. Stat. 31-48d(b)(2)
- Covert monitoringofficial guidance, not lawCovert monitoring only exceptionally, for suspected crime or gross misconduct, authorised by senior management after an assessment, tightly targeted and time-limited, never in toilets or changing rooms. ICO monitoring guidance para 1.19(a)ICO monitoring guidance para 1.19(b) Human Rights Act, Article 8, named, not quoted official guidance, not law
- Covert monitoringstatutory requirementTo uncover a crime: documented facts supporting a suspicion, necessary, and not disproportionate; blanket or suspicion-free covert measures do not meet it. The Federal Labour Court ruled against keylogging without a concrete suspicion. BDSG s 26(1) sentence 2 Federal Labour Court decision 2 AZR 681/16, named, not quoted