BLOG WARS – All that personal stuff is becoming a big problem, and then some!

 We don’t have to walkabout too far back in time, when people depended on print, and mail, and, oh yes, fax. In 1992, late in the first Bush administration, the National Science Foundation started to release the “Internet” to the general public, as if anticipating a gradual “casual contagion.” --

By the mid 1990s it was becoming practical for people to set up their own domains on the Internet, and larger ISPs like AOL were offering personal publishing software to their subscribers. The most enterprising geeks learned to set up their own servers and connect on their own (they could even be 386 machines), whereas as more content-oriented folk tended to go to ISPs, which could often be very small themselves. The World Wide Web, with the http protocol, was quickly becoming the most straightforward content repository. Soon, however, peer-to-peer computing would follow. --

 I originally conceived of Internet self-publishing as a modest way to keep the information in my printed book (Do Ask Do Tell …) current. I would maintain a few running footnote files. Over time this grew into a linked, almost encyclopediac repository about the web (pun intended) of issues that concerned me. -- By 1998, with Google and other search engines becoming efficient, I realized that a global audience would find me very quickly, especially because my content contained mostly static pages and tended to have a lot of proper names and technical terms that make easily searchable keywords. I would find that one did not even have to code metatag keywords to get effectively indexed by search engines. What was most profound was that now one, with essentially free entry, could publish one’s thoughts and that the entire world could find it, and would find it. Search engines, especially Google, were much more effective in giving “average people” visibility than anyone could have anticipated, and this is partly because of a mathematical anomaly developed by Google founders Page and Brin. The idea that one could put oneself in the limelight (and establish a “right of publicity”) so quickly was revolutionary, and had never existed until the late 1990s.  It's amazing, too, because book publishers and to some extent magazine publishers and newspapers go through careful vetting and due diligence before they publish, legal precautions that amateur self-publishers cannot possibly afford, either in dollars or time. Others, like Shawn Fanning, would discover that peer-peer computing offered similar opportunities for promotion of music and video, and they would create their own legal controversies (Napster), although that is off scope for this discussion.

-- By the mid 1990s, some people had already recognized the potential dangers to children from the Internet. There was concern about incidental exposure of minors to inappropriate materials, as well as corresponding concerns that limiting online speech would violate the First Amendment. Congress tried to prohibit “indecent” speech with the Communications Decency Act, much of which would be struck down in 1997. It would return with the Child Online Protection Act (COPA) of 1998, which aimed at commercial enterprises that offer material that is “harmful to minors,” that is, “obscene with respect to minors.” Various other measures would be passed regarding public institutions that receive federal funds and to try to reign in on child pornography. COPA is still in litigation. All of this, however, skirts a deeper and subtler problem, that is, what is the effect of all of the new “free entry” on novice authors and others associated with them, especially their employers and families.

 The stakes could be high. The Internet could offer individuals the freedom to explore issues with great depth and objectivity, and through asymmetry and “uneconomies of scale” outgun the heavily polarized and dumbed down “debate” of political and social issues offered by lobbyists and narrowly focused organizations. Companies and politicians and organizations may have been surprised at how effectively determined individuals could “compete” with them for public attention.

  THE FIRINGS

   I had been aware from the beginning of my writing about the potential conflicts that personal writing could cause. Much of my first book explored to political, psychological, and legal issues surrounding gays in the military, and these related back to a life-changing personal experience of my own.  At the time, I worked for a company that specialized in selling life insurance to military officers. I discussed this with the company in the mid 1990s and took a corporate transfer that would remove me out of harms way of the military business, especially after (for me) a most fortunate merger. One particular comment comes to mind: the company felt reassured because, as an individual contributor in specifically technical areas, I was not in a position to make underwriting decisions about customers. Had I been, there would have been a definite conflict of interest, since I was at odds (however political the motivation) with the customers who might have viewed me, even as a person, in a negative way.

 -- In 1999 the media started to report a few cases where employees of small public companies had tried to manipulate their employer’s stock price with personal websites. The media also reported a few occasions where nurses or teachers had been fired for appearing on pornographic websites.

 -- In 2002, after the 9/11 attacks and multiple corporate stock scandals, as the mood of the country became more guarded, incidents of employees being fired for contents of personal websites started to increase. One of the most celebrated was a  Utah web designer fired for writing about work, and that led to a new verb, “dooced.”  A Microsoft employee was fired for taking and posting pictures of machines at his workplace. Even a Google employee was terminated for breaching confidentiality. At a Minneapolis screening of part of the first “open source” indie film “Blogumentary,” Minnesota filmmaker Chuck Olsen warned an audience in August 2003 that “people have been fired for blogging at home.”

-- Understand that these dismissals are for what employees wrote and self-published at home with their own computers and software. This is not a question of misusing company resources, of abusing company policies limiting company computer resources to “business purposes” (policies common since the 1970s). This is, on the surface, more about conflict of interest. The most common reason for firings were breach of confidentiality or trade secrets, or employees making unfavorable comments about their workplaces, often specifically about their bosses or coworkers.

-- This may sound innocuous enough. It ought to be OK to blog about issues, even those that affect your company, as long as you don’t talk about specific people in your workplace. That ought to be true in a lot of cases. But the lines can be difficult to draw.  We can usually identify a lot of inappropriate content with common sense, to be sure: hate speech, violence, perhaps pornography. Many people in our society believe in a “tainted fruits” religious or political moral philosophy, that holds people individually accountable for what their families or national groups do. Therefore even moderate criticisms of the way issues of handled are sometimes taken personally by some people.

- I had taken note of this potentiality for a long time. In March 2000 I had posted a missive (a “white paper”) about it on my own website (current link) and often got email questions about it subsequently. Even so, all of my positions had been based on the notion that personal weblogs and sites can be viewed as literary, or as having editorial or political value, and should be viewed as content-rich “speech,” sometimes to be weighed against other legitimate concerns.

-- On at least two occasions (early 2003 and early 2004) I have had "post retirement" inverviews that seemed successful but where the employers failed to followup, even with a form "rejection" letter. Is it possible that they Googled me and I was too sharp-edged? Maybe. But in each case there were other unusual circumstances that could have explained employer behavior.

 SARTOR RESARTUS

 The media would indeed eventually pick this problem up and report it. Remember, however, that the media has been distracted by all kinds of other issues posed by “free entry” into cyberspace. Among these were spam, viruses, identity theft, and other security concerns. In 2004 and 2005 the media had warned that new election laws (in connection with a particular court ruling)could indirectly force the government to “crack down” on personal blogging (as compromising campaign finance reform). After heavy editorial pressure from well-conceived newspaper and network journalists, the FEC was able to interpret the new environment in a way that would jeopardize ordinary political speech.

 During this period, a new facility had appeared: the social networking site. Two of the best known would be myspace.com and facbook.com.  Teenagers, college students, and sometimes career oriented adults used these sites to meet people, often for dates or potential marriage or domestic partners. The “content” of these sites, which provided chat facilities, sometimes was a bit silly. Still, other people would use their social networking profiles to post their political or religious beliefs. Toward the end of 2005, the media was starting to pick up on certain dangers, that one could attract dangerous persons (such as pedophiles or stalkers) into one’s life. This could pose serious risks to minors, schools, and possibly even the homes and families of high school students. It is important to remember, however, that often these sites offered their subscribers the ability to limit their audiences to other students or specific age groups. Material posted on these sites was not always intended to be picked up by search engines and spread across the planet and solar system.

 As the smoke cleared from the FEC matter, the media began to focus on a new wrinkle.  Employers had been looking at personal websites and social networking profiles the way they would look at interview suits. Sometimes they view profiles the way they look at body art, tongue rings or tattoos. Yet, in many cases, they (and the “they” sometimes includes colleges, graduate, medical and law school admissions) are looking at profiles and not even informing applicants about it. Sometimes they even look at profiles not intended to become universally public (as is the case with facebook). They saw one's online presence as an indicator of professionalism or, at least, personal suitability.

 This is a bit of exaggeration, but it certain points to a disturbing trend that could undermine the opportunity for pseudo direct democracy that the Internet has been offering. Could employers use the “background investigation” of one’s Internet presence as a test for social conformity? They certainly could, but we need to look at what employers would probably say. And it is a two-way street.

 Let’s also mention first the complications. It’s easy to pick up the wrong person from a search engine. And Google anyone, and (once you verify the identity for each post) you can see what others say about the person, and even that person’s entries onto listservers and corporate message boards or “trash boards,” sometimes even chat logs. Sometimes these are items that a person never imagined would become so public even ten years later.

 Employers are likely to say that they view web chatter and profiles as a kind of public “conversation,” not literature. So they are entitled to envision or pretend that comments on a profile were actually uttered in the (potential) workplace. I think this is an overreaction, but let’s go on.

 There are a couple of issues that employers will say they have “zero tolerance” for. One is obviously a breach of business confidentiality, or content that is obviously illegal or offensive according to customary standards of Internet content (what ISP’s usually call their “terms of service” or “acceptable use policy”). These behaviors would include, for example, copyright infringement, libel, or gross offense.

 But more germane is the employers’ focused concern on personal “bragging.” That is online conduct, often seen with teenagers, that rebels against “the establishment” or accepted legal or social order (especially against "oppressive" social hierarchies or pecking orders) by depicting or suggesting the author engaging in prohibited behavior. Writers sometimes see this as a form of hyperbole, or, with political issues that have a personal impact, a “preemptive strike.” I got into to trouble myself with one of my screenplay proposals when I was substitute teaching. With teenagers, this is more likely to occur in videos showing underage drinking or illegal drug use or, as in one case, merely holding a bottle of vodka in an image. Employers see this as public self-defamation, and they do not want to tolerate it. It can even lead to unforseeable legal consequences that are only now coming to be understood.

 A second point, following on to the "bragging" problem, is that the candidate or employee must not make a statement in a public forum that reasonably conveys (to a “customer”) the idea that the person is not fit for the job. The idea that the statement is on the Internet is not itself crucial to them; this idea has always existed, for example, with accidental or incidental television appearances or newspaper citations. But again, this takes away the possibility of hyperbole or irony that may, in a literary sense, be legitimate and accepted practice in books or film.

 There are two things going on here. One is the content or inferable meaning of the public statements themselves. The other is the ease of making them (free entry) and of their finding a global audience through search engines. Employers may believe that they are focusing upon the first of these (“conversation”), but what is novel is the free entry and global dissemination that can convert “conversation” into “literature.” It is the latter possibility that I think is much more significant and that needs attention from the human resources business, in terms of defining “best practices.”  There is a "soap opera" perception here, that when you "work for" some entity, you dedicate your existence to advancing their aims publicly (or covertly), whatever the larger sense of global morality, which is supposed to  be beyond  your business.

- Can employers reasonably limit associate Internet participation to “conversation” that would normally be acceptable in front of customers or in the actual physical workplace? Is the entire globe a virtual workplace? I think that is unreasonable, because that really would make someone’s evident speech a Rohrshach Test for social conformity. Wouldn’t, for example, sexual orientation be caught up in this dragnet? Often enough it would.

 We know that there are jobs requiring some measure of forced intimacy where sexual orientation (or in a broader sense, evident sexual interests) can become a serious distraction. The clearest example is the United States Armed Forces, where the military has (since 1993) “enforced” its notorious “don’t ask don’t tell” policy with regard to gays in the military. By law, any statement that a soldier is “gay,” (including a personal website or social networking profile) creates a legal (though rebuttable and non-conclusive) presumption that the solider is like to commit actual homosexual acts, and therefore must be discharged. A similar situation can exist with (especially aging) teachers who might demonstrate an inferable and inappropriate erotic interest in legally underage persons, although the idea that a “presumption” would follow that the risk actually increases for criminal behavior sounds a lot less clear (than with the corresponding situation in the military covered by United States Code); but a school board might feel legally pressured to discharge such a teacher. There is a long audit trail of case law balancing teacher free speech with the need for school safety and discipline, and many of the legal concepts are still up for grabs.

 Of importance to far more people is the social nature of many jobs. The growth of “data processing”, first in the mainframe area and then on the Internet, created an enormous niche for more or less introverted people who could “do their jobs” as individual contributors and then do what they wanted with the rest of their lives. After the shakeout in the wake of 9/11 and the dot-com bust, many of these jobs went overseas, making publicly evident socialization more of an issue for many applicants. (This trend may be reversing back, however.) Many jobs involve managing other subordinates, making underwriting decisions about clients or customers, or, particularly, speaking publicly to advocate an employer’s position or at least deferentially sell its goods and services. In many circumstances, the associate’s effectiveness with clients or customers (or, say, students) can be undermined by the associates own personal by public statements about things.

BEST PRAXIS

 If this is so, then employers ought to take some stock of just what they are selling to or promoting in public. There is a cultural irony in the growth of the Internet. There is a tug-of-war between idea-rich content, and transaction and numbers-driven selling and marketing. Certainly, some of the legal problems on the Internet (like spam) have come from “quick buck” mentality. Over time, a younger and better-educated public is likely to demand more intellectual honesty for companies trying to sell things. People want to see their privacy and integrity respected. Therefore, the pressure on companies from individual speakers, even using irony in the way I mentioned above, is probably a good thing in the long run.

 What should individual speakers do about all of this? The tone of some of the advice from some newspaper and network columnists (and “career counselors”) is a bit tacky and disappointing, and shows little respect from the potential value of some amateur content. Nevertheless, there is a call for common sense. Consider your own personal integrity. If you really have a problem with the values of your employer, to the point that you would want to say things that could embarrass your employer in front of potential clients or customers, then you should consider not working there. An employer may expect you to become pro-active for the employer’s causes, not your own, and you will lose your psychological independence. (That's one of the incentives for hyperbole and irony on some of these personal proflues!) Your career should be reasonably commensurate with your own values. “Employment at will” cuts both ways. Nevertheless, whistleblowing (and of course union organizing) has considerable legal protection and public support. My own feeling is, if I were highly paid, I might feel that I was tainted if my own income depended on grossly unethical or illegal behavior, so I still might feel that I should resign first. But that would be a case-by-case thing.

 I feel a bit freer to speak out because I am “retired” and I was always (for the most part) an individual contributor. An older person may have a larger resume of interlinking life experiences to speak out about. Nevertheless, young adults or even teens entering the workplace may have good reason to resent the advice implicit in all of this discussion. The tone of the mainstream wise counsel these days (especially to younger people) seems to be, “enjoy your private life and private choices, but don’t put yourself in the limelight until you prove that you can compete in some generally acceptable way” (and, preferably, "pay your dues" first!). That may sound fair enough, but what does that say about, for example, a gay person with a poor economic advantage contemplating entering the military to start his or her career? Sometimes people do need unions, political organizations, lobbyists, and legal aid or advocacy groups to speak for them. Despite the generally partisan nature of “K Street” (which raises questions about objectivity), it has a legitimate place in helping people.

This leaves us with what employers should do, which is come clean about this. I suspect that many employers look at personal profiles “under the table” because some states (such as California) have laws that attempt to prevent them from off-the-job activities. But laws shouldn’t interfere with employers’ announcing fair and reasonable blogging policies. Because of the “Google revolution,” blogging policies need to be as much a part of the workplace as are corporate computer usage policies today. The "human resources" industry really needs to haul out "best practices" on this one. But the main hooker is this: blogging policies should take into consideration the kind of job to be done. Employers should post their policies in public, on their job board, and should tailor individual policies to different positions with different levels of publicly visible responsibility. For hourly workers who stay on site, and most individual contributor positions, the policies would need to address only the “obvious” issues of legality like confidentiality, trade secrets, and copyright. At the other end of the spectrum, employees who speak in public for the company or who make big-time decisions probably should not blog on their own without some kind of structured supervision. Already, companies that would manage “professional profiles” are emerging, and with some positions it is appropriate for a professional to allow his public presence to be managed for others.

 What we have, then, is a reconstruction of what we call “the right of publicity.”

   ©Copyright 2006 by Bill Boushka, all rights reserved, subject to Fair Use.

Many bibliographic references are available at this link.
Picture: University of Kansas, in Lawrence (aka "Smallville") where I went to graduate school (Mathematics, MA) 1966-1968. At the top of  Mt. Oread you can see the dormitories. I lived in McCollum Hall, the northmost building on Iowa Street.