It is a poorly kept secret that big companies use consumer data without consumer knowledge or consent. Information about the items people buy, the websites they visit, and the topics they search are constantly being tracked. According to ConsumerMan? , this tracking allows companies to monitor information about personal religious beliefs, finances, political affiliation, and much more. This information has mostly been used to engage in more successful and targeted marketing, to determine credit limits, or to allow insurance companies to assess risk. Last month, however, a Wall Street Journal article reported that big companies have begun hiring data mining firms to use this information to predict employee health needs and recommend treatments. Corporations like Wal-Mart are trying to cut the cost of their health-care bills and plan for the future by using this data, which can consist of anything from internet search queries to which prescription drugs their employees are taking in order to determine which employees are at risk of falling ill, are likely to get pregnant, or are applying for surgery. They may then try to persuade employees to take better care of their bodies, go to doctors or even enroll in weight-loss programs.

James Wilkinson of Daily Mail UK points out that generally, companies are not allowed to view their employees’ medical information under HIPPA. However, as long as only group data and not individual data, is shared, this Act does not apply to third parties who can legally search for and analyze employee information and report back to the company. Additionally, only medical information is protected, allowing findings about search queries and item purchases to be disseminated to employers without issue. Thus, employers may find out about pregnancies, health issues and other individual employee information through this permissible information before the employees are ready to share such information with the employer, if they planned to share at all.

There are obvious concerns about infringement of the right to employee privacy and the possibility of data leakage. The most glaring problem is that people should have the basic right to search online and purchase items or stop birth control and eat foods without worrying that their employers are watching. Especially in the case of family planning, the fundamental right to privacy has been entrenched in our society since the Supreme Court decisions of Griswold v. Connecticut and Roe v. Wade. Additionally, employer healthcare companies can reach out, unsolicited, to employees to offer their services after receiving data, which is highly intrusive. Though employees can opt out of these services, allowing such tracking sets a slippery slope for future tracking possibilities. For example, a Forbes Magazine article noted that employers are beginning to track employee health through employer-sponsored smart watches and Fitbits, impinging upon employees’ rights to decide for themselves if they want to exercise or what they want to eat. Employees can be penalized for not adhering to certain “number of steps” or “hours of sleep” requirements, even though, depending on the nature of their work, those factors may not affect their job performance whatsoever. Though supposedly no personal medical information is shared, personal search queries and item purchases or group data can give employers enough information to affect their internal processes. Hypothetically, if a data mining firm’s research reveals that white women between the ages of 28-32 are most likely to get pregnant, companies may decide not to hire or to fire that demographic first in the event of economic downturn

While this collection of personal information seems intuitively invasive, there are some societally beneficial consequences that may result, as well. As previously mentioned, there is nothing illegal taking place, even though the risk of leaking private individual medical data may be real. Furthermore, though the big companies are trying to save money on their health-care bills, partially by steering employees to in-network providers or encouraging them to get second opinions, it is undeniable that the result is beneficial to employees who are encouraged to go to doctors, enroll in weight-loss programs, or change their eating habits. Through their mobile applications, these data mining companies, analyze employee activity and inform employees of possible health risks. The WSJ cited one case of a woman who was informed that her glucose levels put her at risk for diabetes. Since receiving that message, she has lost 35 pounds and is no longer in such danger. This example highlights the fact that employees are often not careful or are uninformed about the potential impact of their actions on their immediate and long-term health and can in fact be helped by their employers in the process of making positive life changes. Additionally, this information is already in the public domain, being used on a widespread basis. The accessibility of the data to employers, as long as private medical information under the HIPPA is kept confidential, is not so detrimental to society and the right to privacy. Further, allowing companies to use information to minimize company healthcare costs will help reduce the overall exorbitant amount of money (approximately $3 trillion) spent each year on healthcare in the US.

Even if the pros of this practice can provide some justification for its use, the level of scrutiny this data mining and usage will receive is also important to consider. The Government is under heavy scrutiny after Snowden revealed that our information is secretly being used for surveillance. Other companies have been reprimanded by various media outlets in response to their tracking activities. But the fact that this data mining and information use by employers can actually promote better and healthier lifestyles actually raises great concern that there will be less scrutiny in this area than in others. This has led Obama and the FTC to request that Congress pass a Privacy Bill of Rights and a “Do Not Track” program. Personally, I know I would like to know who is tracking me on what activities and would like to maintain the ability to control the extent to which my personal information is shared.