We’re dependent on technology to make our work and social worlds go round. Unfortunately, there is a dark side to overuse. This week, we take a look at two examples of how the law attempts to regulate technological use and misuse.
I recently finished a book called ‘Deep Work’ by Cal Newport. At the same time, I’m reading ‘Essentialism’ by Greg McKeown, another complementary book. If you’re looking for two good reads on how to better #adult, don’t go past these.
In Deep Work, Newport makes some astute observations about how we use technology. He notes that instant messaging and email are part of a culture of connectivity at work, which makes life easier but:
… creates an environment where it becomes acceptable to run your day out of your inbox—responding to the latest missive with alacrity while others pile up behind it, all the while feeling satisfyingly productive… If e-mail were to move to the periphery of your workday, you’d be required to deploy a more thoughtful approach to figuring out what you should be working on and for how long. This type of planning is hard.
— Cal Newport // Deep Work, p 59
Alongside the culture of connectivity, the need to look busy plagues almost every modern workplace. Not just busy, but frenetic. When walking past a colleague, the standard greeting is ‘how are you? Busy?’. The standard response would be ‘yes, it’s busy’. Aside from the fact that this interaction is utterly dull—there must be some flaw in the universe. A universe which tells us that everyone is busy 24 hours a day, 7 days a week. This is, of course, not humanly possible.
It makes one wonder whether ‘busyness’ is a 21st century invention in the thought economy. Where difficulty with identifying a tangible output means you have to endlessly justify your existence as a valuable member of society. One way to do this is to look busy. This is despite the fact that getting to the end of our work day does not produce more widgets. There is no production line, no quantifiable value or method of assessing quality. Newport also covers this phenomenon in an amusing definition:
Busyness as Proxy for Productivity: In the absence of clear indicators of what it means to be productive and valuable in their jobs, many knowledge workers turn back toward an industrial indicator of productivity: doing lots of stuff in a visible manner.
— Cal Newport // Deep Work, p 64
As for lawyers, the only method of quantifiability is your time—tangible only in the form of timesheets. And when this is the gold standard to achieving success as a lawyer (rather than producing a desired outcome), then you wonder what is really in the water.
There are two consequences of the timesheet lifestyle where every minute of your life is measured and weighed. First, as a measurement of ‘success’, it can only result in your life becoming crowded out with busy work. There is no longer any room for life outside of work itself, except for more timesheet minutes. Second, there is a decoupling of value from time spent labouring. Where output in the form of hours no longer generates better outcomes. All this leads to a perverse situation. No surprise that clients wonder how their lawyer could have charged X hours on a simple task.
At this juncture, it is useful to put everything in context with a sprinkle of Socrates:
‘Beware the barrenness of a busy life.’
— Socrates
Laws to regulate use and misuse
With all our frenetic activity, you wonder whether technology has some hand in it all. If not the cause of busy work, it is at least a catalyst for it. Let’s look at two examples where laws exist to regulate technological use and misuse.
Regulating misuse
Walk down any street in the city these days and you will find many bobble heads glued to their mobile phones. There must be something particularly fascinating happening on these screens. The telltale signs of screen-walking (viewed from behind the person) are distinctive. A bumbling pace, no sense of direction and always, head tilted down. As much as we would like to think we have evolved to walk and chew gum at the same time, we haven’t gone far with mobile phones. But I must not judge, given that I too have been a culprit.
If you frequent buses or trams, you know that a glance from the windows will reveal that many drivers can’t break their mobile phone addiction. This is despite the existence of laws in Australia (and many places around the world) banning mobile phone use when driving. At the time of writing and taking Victoria as an example, the source of this law is in the:
- Road Safety Road Rules 2017 (Vic) (see rules 300 and 244V); and
- Road Safety (General) Regulations 2009 (Vic) (Part 9 – Traffic Infringements and Schedule 7, which summarises the types of traffic infringements).
To illustrate, I extract a small and incomplete part of the Road Safety Road Rules 2017:
300 Use of mobile phones
(1) The driver of a motor vehicle must not use a mobile phone while the motor vehicle is moving, or is stationary but not parked, unless the driver holds a full driver licence and—
(a) the phone is being used to make or receive an audio phone call or to perform an audio playing function and the body of the phone—
(i) is secured in a mounting affixed to the vehicle while being so used; or
(ii) is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone; or
(b) the phone is being used to perform a navigational or intelligent highway vehicle system function and the body of the phone—
(i) is secured in a mounting affixed to the vehicle while being so used; or
(ii) is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone; or
* * * * *
(d) the motor vehicle is an emergency vehicle, enforcement vehicle or a police vehicle.
Penalty: 10 penalty units.
… (and it continues)
In Victoria, you fall foul of this law even if you are in a stationary car, as long as your engine is on. Wearing a smartwatch also doesn’t save you.
As with any law, its effectiveness is bound by the ability of the State enforce them. Laws are meaningful insofar that you have the ability to do at least one of two things, and preferably both:
- convince people that they are worth following;
- impose real consequences for breach.
Fail in at least one of these areas, and certainly both, and you will have a toothless paper tiger of a law. As much as we would like to believe we live with law-abiding citizens, it is human to cut corners. Especially when you think no one is looking. And this pertains to the situation of driving while on your mobile. In a contained vehicle, many observe and rightly so, that there is no traffic police to regulate misuse. Bar the ‘prying eyes’ of those who might see you using your mobile phone in broad daylight, life is sweet. The mobile addiction continues.
At this point, we should note that using your mobile phone while driving increases your risk of crashing by fourfold. You would convince most people that this law is worth following for this reason alone. But a major reason for why it doesn’t happen in practice is because of drivers’ perception that they will not be caught. There has been minimal police effort to address this lack of enforcement. One of the more memorable but ineffectual efforts of late was of Victorian police posing as car window washers at intersections to nab drivers on their mobile phones.
What if we changed up this scenario?
Let’s introduce a thought experiment in Society Utopia, where everyone has a role to play in enforcing the law. Citizens of Society Utopia own mobile phones (I love the irony) and use them in rather peculiar but effective ways. This includes transmitting data to the police whenever they spot questionable behaviour. One of them is when they spot someone driving and using their mobile phone.
When Citizen X sees Mobile-Addicted-Citizen-Y driving while on their mobile phone, they can take a photo and send it directly to law enforcement via an application (unfortunately Society Utopia also calls them ‘applications’).
Let’s assume that the closed environment of the application means that photos can’t be doctored. If Mobile-Addicted-Citizen-Y is fined, say an inordinate sum of $484, Citizen X also gets a percentage cut. It appears to be a win-win situation.
Thoughts? Let me know in the comments below.
Regulating use
When we fail to take a break from our work emails and other forms of electronic communication, our health suffers. But we treat it as if it’s the only way of working we have ever known. The reality is that our mental states are all the poorer for it. One study found that overuse led not only to increased anxiety in users, but also affected the health of their families. See for example this journal article, aptly titled ‘Killing me softly: electronic communications monitoring and employee and significant-other well-being’.
Since 1 January 2017, the French have laws to curb work email use outside of hours. I note that it only applies to companies with more than 50 workers. According to one BBC report, companies must draw up a charter of good conduct setting out the hours when staff are not supposed to send or answer emails. The law itself forms part of a controversial piece of legislation called the El Khomri law or Loi travail. The legislation ironically made it easier for employers to hire and fire employees.
Also known also as the ‘right to disconnect’, the concept first featured in a 2001 case before the Labour Chamber of the Cour de Cassation (French Supreme Court). The Court found that an employee was under no obligation to work at home or bring his files and working tools home. This was later affirmed by the Cour de Cassation in 2004, in finding that an employee unreachable on his mobile phone outside of working hours did not constitute misconduct. For more detailed analysis, check out this page.
Other countries and companies have followed the French lead. Italy and the Philippines have laws limiting electronic communications outside of working hours. In Germany, companies have adopted policies to address this even though there is no legal requirement. For example, Daimler gave employees the option to use a ‘Mail on Holiday’ program. This deleted all incoming mail while employees were on holiday. Senders would receive an email telling them that the employee was on leave and that their email would be deleted. The intention was so employees could come back to some variety of ‘Inbox Zero’ and feel rested.
One aspect of these laws (at least the French version) is that they leave it to the companies to self-regulate. You can decide for yourself if this produces a desired outcome. Or whether the incentives are fundamentally opposed—such that it is akin to letting the fox guard the chicken coup.
In our next Legal Brew post, we’ll look at how we can use technology in a more conscious way.