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Part of what makes Turk so fascinating — and so problematic — is that, legally speaking, it's basically operating in uncharted territory. The law is inherently, notoriously slow-moving and reactionary, hampered by the forces of economics and politics and often created as a correction to an existing problem rather than a safeguard against an approaching one. And legal apparatuses have been particularly slow to adapt to the Internet, according to Sylvia Allegretto, an economist and minimum-wage expert at UC Berkeley's Institute for Research on Labor and Employment. As she puts it, the Internet is something of a Wild West, at least in terms of legislation: "On the Internet, the laws are always behind what's happening," she said. After all, it was only very recently that California succeeded in making Amazon collect sales tax, and that's something that has a clear analogue in the real world. Regulating the online labor market isn't as simple as just taking an already-existing mechanism and applying it to the Internet — it's more like creating an entirely new legal apparatus for a market that's largely unknown, still in development, and unlike anything we've ever seen before.
Alek Felstiner was among the first legal scholars to tackle this issue, in a paper he published in the Berkeley Journal of Employment and Labor Law last year while a student at UC's Berkeley's School of Law. "The laws that exist governing the employment relationship don't apply here," he said in a recent interview. Employment law, as it was written, had no need to make rules for workers who were anonymous — because until recently, working remotely wasn't possible. There was no need to create payment regulations for micro-contracting — because micro-contracting didn't exist. The law also didn't make room for labor relationships that have no work site, nor did it account for labor relationships that could be created and dissolved instantaneously. "Our existing framework is not completely useful," Felstiner said.
That's not to say that it's entirely unuseful, though. In particular, Felstiner argues, "the distinction between a statutory employee and a contract worker can be mapped onto this."
That distinction — between statutory employees, who, simply speaking, show up to work every day at the same place, and contract workers, who are more like freelancers — is at the foundation of much employment law. It's part of what determines who receives worker's compensation, nondiscrimination and whistle-blower protection, and overtime — and it's at the core of what makes crowdsourcing such a thorny legal subject, according to David Rosenfeld, who was one of Felstiner's professors in labor and employment law at UC Berkeley and who practices at the law firm Weinberg, Roger & Rosenfeld in Alameda. Part of Amazon's service agreement is that Turkers are "workers for hire," Rosenfeld said. "They plainly say you're not a [statutory] employee" said Rosenfeld. "It's very hard to make protections for [contract workers]."
That said, that doesn't mean that Turkers may not be considered employees of the requesters in the eyes of the law. But in order to figure that out — and, consequently, Turkers' rights to minimum wages, employee protections, and the like — someone needs to start asking questions. It's just that they haven't yet. Essentially, any number of entities or events could trigger regulation of the crowdsourcing industry: An agency like the IRS or the labor department could decide to investigate it, a class-action suit could prompt a court decision, Congress could adopt legislation, or the industry itself could even decide to set its own best practices. Some agencies, including the California Labor Commissioner's office, have indicated that they're at least aware of crowdsourced labor, but thus far, no one's taken it on. And until someone does, the industry exists in a sort of legal no-man's land. "We don't know if it's legal, because there haven't been any cases," Felstiner said.
He argues that there are some significant barriers when it comes to building a case about Mechanical Turk and its imitators. "It's quite complicated — perhaps prohibitively complicated — and expensive to figure out who's working for whom and what they're owed for that work," said Felstiner, who now works at the US Department of Labor (though he spoke to me not as a representative of it). "Tracking workers who are all over the globe and anonymous and logging on at all hours of the day is a massive logistical undertaking," he said — and it's one that's complicated by the fact that much of Turk's work is done overseas, in places with entirely different legal and political systems, and that Amazon goes to great lengths to protect itself and the companies it works with. "The problem is that nobody really steps up as the employer — nobody says you're really responsible for paying me for my time," said Rosenfeld.
Felstiner expects that the law will catch up at some point, and his paper even laid out some ideas for translating existing employment laws to the microtasking arena. But for now, at least, he said, "there aren't very many people looking at these questions."
A few years ago, when Andrew Norman Wilson was working as a contractor for Google at the company's sprawling Mountain View campus, he noticed something odd: A trickle of workers leaving a building adjacent to his, just as he was getting to work. Later, Wilson discovered that these employees — who worked in the literal and figurative dark, hidden from the rest of the campus and given none of the high-profile perks that people like Wilson had — were responsible for scanning each page in Google's massive online books library.
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