PERSONAL BLOGS AND THE WORKPLACE – A growing controversy?

 

Before going on. I do have a small profile on myspace now: http://www.myspace.com/jboushka  The short blog is at this link.  See also ABC story on stalkers.

 

Well, I guess we’ll never have a major league baseball team called the Bloggers.

 

Seriously, since 2002, there has been a slow but steady growth of discussion about employee blogging.[1] That is, self-publishing of one’s own thought and interests in a weblog on one’s own website,[2] not on the employer’s computer. Blogs are often simple logs in reverse chronological order but they don’t have to be.  Blogging has quickly become popular with the general public. About 20000 are created daily, and there will be 10 million US blogs by the end of 2005. As of Nov. 2004 about 7% of Internet users had started blogs.[3]  But there is a steady increase of concern that these can become a risk for employers, and that employers need to state specific policies on this issue.

 

The most often-expressed concern is that an employee will divulge trade secrets or confidential information, even inadvertently. Even with no published policy on blogging, practically all employers will discipline or even terminate (and sometimes even sue or prosecute) employees who disclose proprietary information. At the outset, a sensible rule (beyond, obviously, non-disclosure of confidential workplace information) is for an employee never to disclose his or her current employer on his website, even a resume. Outside of recognized collective bargaining or union activities (or an employer’s internal appeal and grievance procedures or other accepted external arbitration procedures carried out privately), employees should not publicly criticize their own employers in an easily identifiable way; the proper response to a sufficiently objectionable workplace situation is to use the free market and to quit (and then litigate if necessary). (The ethics get more complicated, however, if the blogger or commentator wants to discuss public policy or legislation that he or she feels affects all employers similar to his:  discussing issues as opposed to specific people, companies or products is a different bird!) Outside of blogs, there have been numerous instances of employees being fired for “inappropriate” postings (even supposedly anonymous or pseudonymous) on financial site investor “trash talk” message boards (for their employers), as employers have been able to subpoena the identities of the posters (although this is controversial and itself has been litigated). Employees who share their own personal material from their home computers through file sharing software could also run into similar risks, as file sharing (with “super nodes”), assuming one has opened the appropriate ports on a computer, effectively can publish and retrieve information in a way functionally like the web.[4]  There is a service, Onigma Flow Control, which is designed to prevent unauthorized disclosure or trafficking of corporate trade secrets and confidential information, which the company says is often unintentional. It would remain to be seen how to prevent the information from being manually entered on a personal blog, but software can be developed to scan the Internet quickly for proprietary information and identify it, proving immediate notification to owners. One wonders whether DMCA safe harbor provisions could be initiated automatically with ISPs of persons posting confidential information.

 

But we have to dig a bit deeper into the issue. Blogging can be a godsend of bureaucracy-free speech, a new and valuable resource in any democracy. It is an effective technique of passive marketing that does not involve spam or telemarketing or intruding upon anyone, and costs very little. On a slightly greater scale blogging resembles on-line web self-publishing of entire literary works, which may be a new way to become noticed for novel subject matter (instead of the old-fashioned way of written queries, agents, and third parties) although many interests may not respect its value yet. It seems to be protected by the First Amendment (although that document from the Bill of Rights only protects the writer from government itself, not from employers). Some people with vested interests or from older generations, however, will see blogging as an unethical form of unsupervised self-promotion, which might draw unwanted attention to others (such as family) besides the blogger. So blogging has a place in the cultural war over the way laissez-faire works in a practical world.

 

The problem that has worried me since about 1999 is the right of publicity.  Generally, a clever blogger (especially with static pages) has a good chance of being found by others, including family, coworkers and bosses through search engines. The popular hip term is “Google hacking,”[5] [6] and this term highlights the asymmetric potential of a single person’s speech. Some sites report that employers are starting to bookmark sites owned by their employees to track for confidentiality infringement, and sometimes employers check for this from job applicants (without telling the applicants). Boolean searches can get around common names. (It is significant that Google caches obsolete information that can be hard to remove, especially if the site itself goes away and the content is subsequently orphaned. ) That point seems to have been missed so far.  Of course, the blogger can use a pseudonym or meta-tags to keep out search engine robots, but then, what’s the point? Political speech used to consist almost entirely of group-centered activism and lobbying. Now individuals can stilt the debate. It is, however, apparent that a stakeholder of a company could become disturbed or distracted by the comments made by an employee, when the stakeholder finds the comments at home through a search engine. A personal preference that a speaker might have protected as a private matter in an earlier generation now is potentially present, at least mentally, in the workplace “premises” with customers, subordinates or students if the speaker has chosen to make it public, even for a good purpose such as to advance a political argument. Therefore, I have even said that people with certain jobs should not blog into the public space (even about issues!), at least without supervision. (Blogging to a restricted whitelist, mentioned below and more recently popular in 2006, does not present these problems at all.) This list of positions (usually salaried professionals) could be extensive, and include, besides corporate officers, most corporate managers with direct reports,[7] spokespersons or lobbyists, professional journalists, “fraternal company” staff members, military[8] and law enforcement people, permanent teachers (if they give students grades)[9] [10], some financial analysts or auditors, underwriters, private contractors working overseas in politically sensitive or unstable countries, or people whose work somehow depends on a clandestine approach and a public “low profile.” In these cases sometimes the blogger could “freeze” his work (as already done) into some kind of archive and discontinue maintaining it. Or, supervision from the employer or a third party (publisher) should be arranged.  Common sense suggests that writings limited to or circumscribed by lifestyle issues such as home, garden and cooking—not of controversial nature—would not present this kind of downstream risk. Possibly a company could define a blogging policy for managers in terms of prohibiting intentional self-promotion in a public space, if that presents a conflict with a public role for the company. Individual contributors in the workplace generally would not run this sort of eventual risk, as long as they speak only for themselves and avoid identifying or disparaging their employers. In the absence of a formal blogging policy, employee-owned and self-posted content may be objectively legal but be viewed by employers as disloyal to the sensibilities of customers or stakeholders and indicate unsuitability for the job, as if the posted or published comment had been made in an actual conversation at work. A self-publisher or poster cannot always presume "literary" respect and associated freedom from censorship that is expected in more conventional publication. 

 

Journalism poses some of its own problems because of the requirement of a public appearance of objectivity. However, the problem can be turned on its head, as journalists have sometimes been dismissed when it was discovered that they held positions in activist organizations. There has been discussion over whether bloggers should enjoy immunity from disclosing sources as do “professional” journalists generally, although even that custom does not seem to help Time contributors Matthew Cooper (the White House correspondent) and New York Times writer Judith Miller, who could be jailed for contempt when the Supreme Court would not intervene to help them. Generally, bloggers would probably have much less protection. (My own practice is to turn over to law enforcement any information that would relate to the commission of a serious (not “victimless”) crime or terrorist attack; I have had to do this a few times.)

 

I did a search in Google on “blogging policy” and came up with a few interesting entries. For example, a software company called Groove Networks has disseminated what seems like a reasonable policy which, however, admits that sometimes key employees in financial negotiations should not blog at all.

 

Here is the Groove reference:

http://www.groove.net/default.cfm?pagename=WebLogPolicy

 

and a comment about it

http://www.ozzie.net/blog/2002/08/24.html

 

Apparently, Microsoft has considered establishing such a policy.

http://www.microsoft-watch.com/article2/0,4248,1128705,00.asp

 

 

At this point, it is apparent that it is better for a company to publish and let its employees and job applicants (before they have to register with an employer’s job site or submit an application) know its policy on this matter.  As one can tell from some of the incidents, some employers have decided “after the fact” when an employee went over the line in talking about the company or its industry, without having any clear policy. At the same time, we would not want to see knee-jerk “no blogging” policies for everyone to become acceptable personnel practice. Here is a suggested general blogging policy. But, see the recent caveat below! Employers are likely to say, however, that employees must not place on a personal blog (in a “public space”) any comment that they could not make in the workplace directly, or any comment that would call into question their ability to do the job or create confusion with customers or other stakeholders. A little thought shows how this subjective notion becomes problematic for managers, spokespersons, some external sales people, military or law enforcement, professional journalists, and the like.

 

Companies now often hire investigators to track down what is said about them in blogs, a practice called "ghosting."

 

There is a more recent (Aug 20, 2007) piece by Chip Camden in Tech Republic that does encourage information technology consultants to blog -- with discretion and care, of course. He recommends two blogs, one personal and one professional, and make it clear they are distinct. Here is the link (may require registration or subscription).

 

At the outset, it should also be apparent that employers could attempt to draw policies that limit an associate's claim to his own right of publicity. It is unclear what the legal outcome of such attempts could be. But employers, logically, could tell associates not to draw undue attention to themselves on the Internet or other public spaces, or to "keep a low profile". That would sound reasonable for just some kinds of jobs.

 

My concern, of course, has centered around the “Google hacking” issue, where a person’s comments about anything or any entity can be located anywhere on the planet very quickly. This possibility is a profound development, and has been significant only since the mid or late 1990s. It should not be surprising that companies would be slow to develop personnel policies for behaviors which occur outside the workplace but that obviously affect the workplace and are, in a sense, present on the premises through the discovery potentiality.  Nevertheless, as The Washington Post article (see the footnotes) article points out, even apparently anonymous weblog comments can often be traced easily through the workplace grapevine (this kind of reminds me of the process called “integration by partial fractions” in calculus!), and still become known anywhere on the planet. Does, as a matter of business ethics, receiving a paycheck from a company imply public loyalty to the company and its management? Is there an ethical problem with “biting the hand that feeds you”?[11]  That’s a tough question. Employees have a legal right to organize; the First Amendment right to “expressive association” does translate to the private workplace when it comes ultimately to the right to collective bargaining and organizing, because that is built into our statutory law. Unsupervised, self-published expression, however, because of its self-promotional potential, may be less protected in the private workplace. Remember, the First Amendment does not apply in the private workplace until a legislature passes a law saying that it does.

 

It’s also important to note that most blogs are more like commentary than “original” journalism. A well-conceived blog or information site will provide specific bibliographic references and links (these might be press stories or they might be legal documents or proposed legislation available on the Web), and then provide balanced commentary. It may have a bias toward a position, but it can answer the opposing position. Targets of blogs (as noted in the footnote 1 below) have complained about being written about in a public space without being contacted, but this activity should not be confused with collecting private information (SSN, address, phone, credit cards) about someone that could be hacked (though not published).  Comments about persons should always be verifiable and not consist of “rumors” about non-publicity-related activities, such as an observation that such-and-such-celebrity visited a gay bar. My site started as a series if expanded footnotes to my books, and grew from there, and is not a traditional reverse order blog.

 

Yuki Noguchi, “Cyber-Catharsis Bloggers Use Websites as Therapy,” The Washington Post, Oct. 12, 2005, describes personal blogs as diaries by people going through various situations, such as hospital treatment, often inviting reader feedback. Many people do not realize that they are visible essentially worldwide (unless they are secured). Some hospitals like INOVA in Fairfax VA are actually encouraging patient blogging. However, in practice many blogs are devoted to issues rather than personal accounts. My own site (technically not a “blog” since it is a collection of articles about different topics and not in reverse order) focuses on the issues and generally relates personal experiences only in the DADT books that are also online.

 

In March 2005 there have surfaced reports that bloggers could be creating complications for campaign finance reform. According to one story, “Bradley Smith says that the freewheeling days of political blogging and online punditry are over. In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.[12] There is talk that it would be illegal to link to a candidate’s site, send campaign material to a list, or include campaign material on a site. The legal technicality refers to the extension of the 2002 McCain-Feingold Campaign Finance Law (Or Bipartisan Campaign Finance Reform Act of 2002) to the Internet this year. This had been blocked in 2002 by a 4-2 vote at the FEC but in the fall of 2004 a Court ruled the exemption illegal and an appeal of that decision (effectively preventing an extension) failed this year because three Democrats would not go along with it. Obviously, there is a problem with determining the “value” of a free link to a candidate’s site, or of a home blogger’s own analysis of a candidate’s position. It would seem to me off hand that this would present a tremendous First Amendment problem, because ordinary conventional activism for candidates goes on without being considered “campaign contributions.” It is very difficult to separate issues from candidates, and it is not possible to separate issues from each other in an intellectually honest fashion, as I have shown repeatedly with the “family values,” “don’t ask don’t tell,” national security, social security and health care issues. Topologically, it’s all a big web where everything is connected to everything else (or is this a homology?). 

 

Arguably, a clever blogger could have “influence” out of proportion to his ordinary means, so at least there is a
”paradigm” issue. The EFF provides this link to comments from the Center for Democracy and Technology, as follows: http://www.cdt.org/speech/political/20050603cdtcomments.pdf   Apparently some of the rules may go into effect on July 1 2005 as some blogs (such as http://www.instapundit.com/ and http://www.talkleft.com/ ) are now calling themselves “online magazines.”  There are suggestions that some establishment press companies have more protection from the proposed rules than to amateur bloggers. There are also questions about whether an amateur blogger can incorporate for liability protection.

 

Here are some more references from the FEC (or redistributed by the CDT): Proposed Rules 4/2005 are at http://www.cdt.org/speech/political/20050404fec.pdf

Summary of proposed changes: http://www.cdt.org/speech/political/20050500fecrecord.pdf ; very brief summary  http://fec.cdt.org/summary.html

The Beta test site housing the regulations appears to be http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=3f72039dcdb6e4d3aa711bf7cf73bd22;rgn=div5;view=text;node=11%3A1.0.1.1.8;idno=11;cc=ecfr

Most of the important issues are in section 100, but you can click “browse next” to move on to further sections. Some critical concepts appear to be “express advocacy” and the specificity of a candidate for which money was paid to a blogger or writer.

 

There was a bill “The Online Freedom of Speech Act,” H. R. 1606 introduced by Rep.Jeb Hensarling (R-TX), to amend the Federal Election Campaign Act of 1971 to exclude the Internet from the definition of public communications as defined by McCain-Feingold. See  http://www.theorator.com/bills109/hr1606.html  There is a similar bill from Sen. Minority Leader Harry Reid, S 678 at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s678is.txt.pdf   There is a good discussion at http://www.personaldemocracy.com/node/529 

The Washington Post wrote an editorial (may need online subscription to view) against the bill, “Cyber Loophole,” on Oct. 11, 2005; The Washington Times responded with its own on Oct 12., 2005: “Suffocating the First Amendment.”  The Times fears that McCain-Feingold could make it impossible for anyone without a lot of money to set up a blog because of unknown legal liability. The Time views the bill as essentially giving amateur bloggers the same media exemption enjoyed by the formal press (and, again, freedom of the press is a separate First Amendment guarantee). The Times also make the point that money has very little to do with the effectiveness of blogs compared to other media; they are mostly run by people without large resources and develop an audience only when they really have sufficient content quality. The FEC is supposedly rewriting the rules to give amateur bloggers some reassurance that they will not be dragged in to this law. It would seem sensible to regard any online communication done for free or not done for hire from another party (and not containing paid political advertising) as not imputed under the law.
 

EFF’s account is at http://www.eff.org/bloggers/lg/faq-election.php  and indicates that the new rules (as of March 2004) would emphasize paid political contributions to support blogs. The Shays v FEC opinion may be read at http://www.fec.gov/pages/bcra/shays_meehan_mem_opinion_dc.pdf

 

March 22, 2006. Press releases:

"FEC Seeks Comment on Political Advertising Data in Coordination Rulemaking"  (March 13, 2006, deadline March 22, 2006)

http://www.fec.gov/press/press2006/20060313coord.html

new rules could be announced March 23, 2006

 

The FEC voted 6-0 on March 27, 2006 to regulate only paid poltical advertisements on blogger websites. Presumably companies that generate ads for bloggers (like Google adsense) would have to be careful not to include ads for politicians or elections. Here is the link. http://www.fec.gov/agenda/2006/mtgdoc06-20.pdf  The AP story is by David Pace, "FEC Won't Regulate Internet Politics," March 27, 2006

 

A distant related problem is disclosure of word-of-mouth marketing. See The Washington Post story Dec 12, 2006 by Annys Shin, discussed at this blogspot link.

 

 

Ephraim Schwartz has weighed in on the reported backlash against bloggers.[13] Schwartz discusses Sapient Chief Technology Officer (CTO) Ben Gaucherin who allegedly called blogs “the digital equivalent of the pet rock” and believe that unsupervised “stream-of-consciousness” blogging can lead to legal problems, like sexual harassment claims. (Ironically, I was unable to find the source-text of the Gaucherin interview online through Google.)  Schwartz cites Sun Microsystems forward-looking blog and calls Gaucherin’s potentiality-based arguments a “red herring”, but later comes back and plays devil’s advocate with comments by Richard Neff of Greenberg-Glusker to list a few of the potential risks. These include “trade disparagement,” violations of Sarbanes –Oxley (with postings predicting an employer’s future earnings or speculations about possible mergers and acquisitions). He mentions a case where Apple sued several bloggers for revealing trade secrets and subpoenaed to get bloggers’ sources. Apparently there was a legal fight over whether bloggers enjoy journalists’ protection of sources (I think they probably don’t without some official credentials) and even this protection can fail with illegal content or issues of national security. Ironically, the Communications Decency Act of 1996 (the CDA) contains a provision that protected web hosters from downstream liability, and this was not struck down by the 1997 Supreme Court decision overturning the censorship provisions of the CDA (that would lead later to a fight over COPA). These arguments would be as valid legally for writings on an employee’s own domain as on a corporate-owned blog.

 

 

 At least one Microsoft employee, Micheal Hanscom, was fired in late 2003 in an incident, and here is his side of the story.

http://www.michaelhanscom.com/eclecticism/2003/10/of_blogging_and.html

http://www.michaelhanscom.com/eclecticism/2003/10/even_microsoft_.html

 

However, Microsoft apparently has hundreds of employees who blog: http://www.microsoft-watch.com/article2/0,1995,933657,00.asp  And software companies sometimes hire bloggers under contract. Matt Marshall has an article in Mercury News, “Bucks for Blogs,” Aug. 21, 2005, about high-tech companies hiring bloggers as consultants.

 

In early 2005, there have been increased reports at other companies, but generally because of blogs specifically about those companies or workplaces.

 

For example, a Delta Airlines flight attendant was fired (on a weekend) because of her blog in which she appears in her flight uniform:

http://insight.zdnet.co.uk/business/employment/0,39020484,39181469,00.htm  There is a claim (with the EEOC) that male employees with similar blogs (although possibly less “revealing”) were not fired.

 

And Mark Jen was fired from Google for his blog http://99zeroes.blogspot.com/  in which he wrote about his work at Google (and apparently most of his comments were positive); apparently he wrote about future projects, and lost his job very quickly as an associate project manager there. "I spend the bulk of my time thinking of new features or products that customers would want (read: stuff that I want) and then I organize people to build it. It's great!" It appears that he had to stop his blog, possibly to protect a severance agreement. (As of 2/10/05, we understand that it is back up.)

 

In reading his story, it should be noted that Microsoft makes software for the Mac, too (Office). I use it.  His manager did a double take, saying he could write what he wanted on his own domain but that his employer could fire him for what he said on it.

 

There are stories of anti-blogging policies at The New York Times, but maybe that just applies to journalists. Footnote [1] (about the ABC story) on this file discusses recent incidents at Wells Fargo, the Houston Chronicle, and a major LA web design firm. At Wells Fargo, Peter Whitney, a mailroom clerk and receptionist, had made jokes about some of his coworkers, on http://gravityspike.blogspot.com/

 

Actually, though, one can make the argument that blogging could save conventional newspaper and television journalism, as it competes with the Internet. Michael Hirschorn has an article in the December 2006 Atlantic Monthly, "Get me Rewrite! A modest proposal for reinventing newspapers for the digital age," in which he suggests that journalists could use their own social networks to blog in the specialties. This is already happening. Many newspapers have their own blogs, as do networks (like MSNBC with Hansen's blogs on the "To Catch a Predator" series.)

 

 

The police union for the Montgomery County MD Police Department has a message board on which some police officers have made remarks about others in bad taste, and there are calls for it to be taken down. Ernesto Londono, "Chief in Md. Urges Close of Internet Police Forum," The Washington Post, Mar. 24, 2006.

 

At least one private Roman Catholic high school (Pope John XXIII Regional High School) in Sparta, N.J. has ordered students to remove any blogs from the Internet that mention the school or their personal lives. The school may inspect myspace.com and xanga.com for personal diaries of students. Students who violate the policy risk suspension. The school claims to have had the policy for five years but has started enforcing it now as a security measure, to protect students and their families from stalkers (perhaps in conjunction with the idea that stalkers could locate students with various “detective” search engines). A few other private schools around the country now have such policies. The AP story is by Wayne Parry, at http://news.yahoo.com/s/ap/20051026/ap_on_hi_te/techbits_student_blogging_ban  The story suggests that public schools would have a much harder time legally enforcing such a ban. (There have been other reports of public schools prohibiting blogs promoting gangs, violence, or similar behavior. Schools have attempted to reign in on websites that “rate teachers.” Public schools may have the authority to do so if they reasonably believe that safety or discipline within the school is at serious risk because of student or teacher speech, even outside the school.  There have been instances where (both private public school) teachers and other school employees have been fired or pressured to resign after involvement in off-duty pornography (legal pornography, not necessarily just child pornography, which is always illegal.  The Montgomery County, MD school district was reported by NBC4 on March 8, 2006 not only to be blocking mspace.com on school computers but disciplining students with detentions when they are found to have placed inappropriate materials even on their own time and computers; they are ordered to remove the material or face at least detentions.) There can occur situations where school principals might question a teacher’s deferential judgment in making some controversial personal material on the web publicly, even if the content is lawful and not really pornographic. This may be especially the case with gay issues. Teacher free speech remains a touchy subject.

 

Myspace does have its own statement of how members should behave online, at http://viewmorepics.myspace.com/misc/safetytips.html?z=1    Persons under 14 are not allowed to have profiles on myspace. Remember, these rules focus especially upon the security concerns of minors. Learning to use the Internet properly is like learning to drive a car. A lot of good things in life are very dangerous when misused, and teens should have developed a certain amount of maturity before parents let them use these sites. Adults, depending on their circumstances, would normally have more freedom, but should be aware of much of the advice given here. (Adults-- it is a good idea to use a mail box land address if you have your own Internet domain or online business, however legitimate and legal, and to use cell numbers only. By the way, on the cell number issue I watch that issues too; one may want to have a cell number that does not use messaging. If you want to make yourself famous, fine--but think it through first. Everyone's circumstances are different.)

 

Student blogs have sometimes drawn attention for criticisms of their teachers, and sometimes for bullying other students. But in Rhode Island in March 2005, a student photographed his school principal smoking on school grounds and posted it on the Internet on his own site. He was suspended and ordered to take the picture down, until the ACLU intervened. He is back in school with his website still up. For another case in Missouri see http://www.electronic-school.com/199903/0399ewire.html

 

On Jan. 17, 2006 Tara Bahrampour and Lori Aratani in The Washington Post wrote a sensational article, “Teens’ Bold Blogs Alarm Area Schools: Uninhibited Online Remalrs Full of Risks, Officials Warn.” Some high school students, in order to become popular, have boasted about illegal behavior like alcohol use, and some have publishe nude photos of themselves, which they may not realize is illegal child pornography (even when created by the minor; elsewhere the use of webcams by minors to sell their own images illegally is presented, as was part of a big New York Times story in mid December 2005).  Some of the sites that encourage teen blogs is myspace.com, xanga.com and facebook.com, all of which require member log in to see the blogs. (Facebook, which has separate profile servers for college students and high school students, maintains that it does not allow outsiders without valid school email addresses to see the profiles.) Teens think that this is their “private” space without realizing that the whole world can find it.  The news story advises that the blogs can be read by future employers and college admissions officers, although this possibility (which started to surface in the media around 2002) may be overstated because many people have the same names (confused even more by nicknames) and search engines cannot reliably identify people without a lot of effort by the investigator. A good question would be how employers could read Facebook if Facebook deines access outside of school (maybe schools could see it through their .edu TLDs), although they could ask to see them on job applications. [13.5] A major resource is http://www.wiredsafety.org (also teenangels.org, cyberlawenforcement.org, internetsuperheroes.org  or http://www.netsmartz.org ). Some private schools have expelled students for off-campus online behavior. For public schools it is much more difficult to come up with policies in the face of the First Amendment. There are increasing reports of male adult sexual predators contacting students after reading their "overly personal" profiles online at some of these sites. The Middletown, CN police department is investigating six such cases in Feb 2006.

 

In May 2006 the Massachusetts Attorney General wrote to Myspace.com and asked that the company restrict membership to those over 18. Myspace says it has many controls in place and restricts visibility of members less than 16. I strongly recommend limited access (from the public) to those who are less than 18. See the CNN story at http://www.cnn.com/2006/TECH/internet/05/03/mass.myspace.reut/index.html

 

Here is an interesting analysis of the "mistakes" on a typical Myspace profile, by MSNBC:  http://www.msnbc.msn.com/id/12210237/

"How Myspace works:  http://www.msnbc.msn.com/id/12209724/ 

Myspace report to Dateline: http://www.msnbc.msn.com/id/12221363/

 

 

The school district in Oceanport. NJ agreed to pay $117,500 to a student Ryan Dwyer (now in high school) who, while in 8th grade, started a website critical of his middle school and allowed posters to make entries on a Guest Book, some of which were apparently in poor taste; the school disciplined him and force him to take it down. The site was created at home with the student’s (or family’s) own materials. Here are a couple of postings: http://www.splc.org/newsflash_archives.asp?id=727&year=2004

http://www.aclu-nj.org/pressroom/aclufilesfreespeechlawsuit.htm  http://www.aclu.org/StudentsRights/StudentsRights.cfm?ID=17919&c=159 Text of the court opinion (pdf file) http://www.aclu.org/Files/OpenFile.cfm?id=17918  The Court mentions another case J. S. vs. Bethlehem Area School District (where an apparent threat was not taken as such), and Emmet vs. Kent School District No. 415 that dealth with mock obituaries that were not legally threats. The precedent dealing with conduct that threatens school discipline or is likely to create disruption is Tinker vs. Des Moines Independent School District; also Bethel School District No. 403 vs. Fraser, and Hazlewood School District vs. Kuhlmeier, Killoon vs. Franklin Regional School District  But there has been recent concern about students and teachers posting any personal accounts (even when the accounts are legal and well-motivated) because of the potential psychological disruption to those who find the material, as well as concerns particularly over attracting stalkers and sexual predators. Gay and lesbian students and teachers will feel the need to be vocal online, and others will find their online statements not just provocative but intended to be disturbing and disruptive to the comfort of other vulnerable minors.

 

Of course, parents can regulate what their kids do at home, and public schools could prohibit illegal content posted about the school. Minors may not have the same first amendment rights to materials deemed “harmful to minors” as do adults. Students may not post illegal content (child pornography, direct threats, obscenity). Otherwise the legal standards may be similar to that for teachers. Relevant litigation and case law is (Pickering-Connick, as to whether the speech would disrupt the school system, its curricula, or disturb students. Other relevant litigation with similar principals is Tinker, Ubriaco, Emmet v. Kent, Beussink v. Woodland, Bethlehem, Porter v. Ascension, Ginsberg v. New York.).  Electronic Frontier Foundation’s resource is http://www.eff.org/bloggers/lg/faq-students.php  In northern Virginia, both the Arlington and Fairfax County school districts plan on providing information to parents on this issue in early 2006.

 

ABC News “World News Tonight” weighed in on this issue on Wed. Jan 18, 2006 with a story, “Schools, Parents Cracking Down on Web Socializing: Web Sites That Bring Students Together Can Come Back to Haunt Them” at http://abcnews.go.com/WNT/Technology/story?id=1519220  The story reports that at least one Federal agency now looks at facebook.com, at least before hiring student interns (it’s not sure if this applies to older job candidates), and some colleges now ask students to name all of their online blogs or profiles on college applications. The news story advises students not to publish anything on a blog or profile that they wouldn’t want a college or employer to see. For GLBT issues, this is certainly a touchy statement, particularly for college students, who are usually legal adults (18 or over). Some students have had their profiles and pictures reproduced improperly (and defaced) by others. Again, admissions of illegal behavior (drinking if under 21 or tobacco use if under 18 or any illegal drug use) is actionable, as would be nudity or anything legally viewed as child pornography or participation in sexual activities when under the age of legal consent for the particular state of residence (18 in CA).  The ABC story makes one ask, will employers start asking about personal blogs or sites as part of regular application processes? For managerial jobs or jobs with publicity significance, this might seem appropriate.

 

Megan Boldt of the St. Paul Pioneer Press (MN) reports an incident in Forest Lake, MN where a student was disciplined for defaming a teacher on myspace, on Apr 29, 2006. "Rash of cases has cropped up at area schools" the story reads, and the legal standard regarding off-campus speech (material disruption of a school environment) is discussed. The Press also has an earlier story by Jimmy Greenfield and David Haugh, Chicago Sun-Times, April 16, 2006, "What Happens on Myspace Doesn't Stay on Myspace" with students now worried that what they put there could haunt them twenty years later with a job application.

 

In June 2006, Anick Jesdanun of the Associated Press reported "MySpace Plans New Restrictions for Youths" (Access North Georgia) http://hosted.ap.org/dynamic/stories/M/MYSPACE_ONLINE_SAFETY?SITE=WDUN&SECTION=HOME&TEMPLATE=DEFAULT . Apparently the company will make it more difficult for persons over 18 to sign on as "friends" of minors (because someone as a sexual predator could intend to entice the minor). The story reports a lawsuit against Myspace (which sounds frivolous) by a 14 year old who was assaulted by a 19 year old (the legal question would be, to what extent my MySpace play the "brother's keeper" role for minors who misuse the service). A 16 year old girl went to the West Bank in the Middle East to meet with a man she had met on Myspace. 

 

ABC News also has a series of tips for parents on teen blogging, March 15, 2006, at http://abcnews.go.com/GMA/AmericanFamily/story?id=1725781  An earlier story, Feb 28, 2006, had been, "do you secretly read your teen's blog" at  http://abcnews.go.com/GMA/story?id=1359594  Also see http://abcnews.go.com/GMA/story?id=1724687 about someone using the Internet to do good.

 

On July 17, 2006, The Washington Times, in a story by Jacqueline Palank, published a story "Face it: 'Book' No Secret to Employers: Social Sites used as background check." The story claims that the National Association of Colleges and Employers (NACEWEB) polled 254 employers. About 40% reported occaisonal use, 35% said googling applicants was infrequent, and about 7% admitted that it was "standard practice." More do it "under the table," perhaps out of legal concerns in some states. (Some employers even ask associates or interns with social networking site profiles to do the checking for them!) Curiously, the story reports that Fairfax County Public Schools sometimes checks job applicants this way. I had an incident myself in October 2005 with one of my postings.  If you go to the NACEWEB site, you see a story to the effect that about 25% of recruiters review "social networking sites" or Google candidates. It looks like you have to be an employer or an HR person to join, so it is not easy to get their side of the story right now. I will continue to track this down. This sounds like a good issue for a "think tank" to do a symposium on.(By the way, so far I haven't found a lot on the at Society for Human Resource Management (SHRM), to which I subscribe; there is a tendency for SHRM to look at things within framework of strictly legally driven requirements, and Google still seems outside this world!)

 

Steve Taylor, "Seeking Secrets In Cyberspace: To surf or not to surf when checking candidates: that can be the question." Staffing Management, Society for Human Resource Management, July-September, 2996, p. 16. The article gives a balanced perspective; some employers surf because they think that their competitors do, but there is a risk of getting inaccurate information, or in being influenced by non job-related information (religion, sexual orientation). Employers are more likely to check with search engines on salaried positions than hourly. They may be particularly concerned if an applicant blogs specifically about previous employers in a non-professional manner.  However "unreliable" cybersurfing may be as a "background investigation" tool, employers may feel tempted to use search engines to ferret out derogatory innuendo about individuals for sensitive positions (like working with children), when more conventional background checks are limited (often) to public records, credit reports, and outright convictions for crimes. Taylor also gives a court case in a sidebar, "Too Much Knowledge Can Be a Litigious Thing" on p 19 (Raytheon Co. v. Hernandez, 2003). Here is a link to the Opinion on the Supreme Court's website.

 

It should be noted that some employers, especially school districts, are starting to develop "do not mention" practices or policies (at work, with respect to off-duty blogs). That is, do not mention the fact that you have a blog or website at work, and especially its name, if you have a blog whose contents could, in the views of some people, be viewed as a negative reflection on your fitness for the job. The employer's theory is that, with this policy, they don't have to make the presumption that you are the speaker if someone finds the blog through Google. It could be an offense to mention the blog even though you don't mention the specific offending passage (sort of like the database idea of an "full outer join" that incorporates or selects everything for potential incrimination). This sounds like a kind of "don't ask don't tell" policy with respect to blogging. If you mention the blog, that "proves" that you are the speaker. This theory recognizes the possibility that search engines can misidentify people with synonymous names and also recognizes that different people, based on the potential unusual spelling of their names, have different levels of exposure to employer-related problems.

 

Along these lines, Yuki Noguchi wrote an article for the Business Section (p D1) of The Washington Post, Aug. 22, 2006, "Kids Say the Darndest Things in Their Blogs: For Parents, It Can Be Embarrassing."  Kids could make comments about their parents or families that could be perceived unfavorably by older people, and could make comments that they overhear about their parents' employers, conceivably revealing confidential information and getting their parents into legal trouble. Of course, the moral case goes both ways (what if your Dad hires underpaid slave workers overseas?)  The article notes that sometimes observations that used to stay private ("family secrets") a generation ago get out into the public space today because the younger people perceive the material as socially and politically important for everyone. Again, the "self-incriminating" blogs self-published out of a desire for "rebellion" could give other companies a legal excuse to publish databases of persons not convicted of any crimes but "suspected" of illegal activities (like drug us).

 

On March 16, 2005 Tory Johnson on ABC News gave a story about employers googling applicants, particularly college graduates. Her story "Dusting Your Digital Dirt: Your Online Web Pages Can Cost You a Chance at a Job" at http://abcnews.go.com/GMA/Careers/story?id=1729525&page=1  Trudi Seinfeld was also part of the broadcast and she said that New York University reports that 3 out of 4 employers have checked profiles before or during interviews. I have serious ethical concerns about this practice: I think employers should announce their policies in advance (as I note many places on this site), as it could get into religious and cultural profiling (GLBT issues, of course) even though it is understandable that employers would be turned off by bragging about illegal behaviors, drinking, drugs, etc.  Yes, when you post something on a blog you are giving permission for anyone to see it. The problem is, with careless searching it is too hard to distinguish between this and legitimate material (because of controversial or edgy subject matter0, sometimes.  This gets into the business of "impressions" v. critical and objective thinking. Johnsonr recommends "narcisurfing" -- Googling your name to see what impression it leaves. Trouble is, other people can make comments about you or make legitimate bibliographic references to your work that are years old. Also, cached search engine results may be hard to get rid of. Tori Johnson has a followup story on Ju;y 31, 2006: "Is MySpace Sometimes a Professional Liability: If You're Going Risque on Your MySpace Page, Be Prepared to Answer Questions About It During Job Interviews", at http://abcnews.go.com/Business/CareerManagement/story?id=2249033&page=1

 

Paul Marks has an alarming article "Pentagon sets its sights on social networking sites" in the June 9, 2006 New Scientist, at http://www.newscientisttech.com/channel/tech/mg19025556.200.html  "I AM continually shocked and appalled at the details pepple voluntarily post online about themselves," Jon Callas, a chief security officer of PGP, a company that develops encryption software. The article maintains that the National Security Agency is also mining social networking sites (and personal weblogs and sites like this) for "dots" to connect in terror plots, just as it is mining phone calls. "You should always assume that everything you write online is stapled to your resume. People don't realize you get Googled just to get a job interview these days," Callas is quoted as having said. The development of the semantic web and the Resource Descriptive Framework (RDF), which aims at classifying and "labeling" data has the possibility of offering companies the ability to "spy" on people for social conformity.

 

Brad Stone, Newsweek, Aug. 28, 2006, "Web of Risks: Students adore social-networking sites like Facebook, but indiscreet postings can mean really big trouble," discusses some incidents with Facebook, as a college student at Emory was expelled after writing was was misinterpreted as a threat, and of students rejected by employers because of inappropriate personal profiles showing underage alcohol use. Facebook is supposed to be localized (not available beyond specific schools) but nevertheless, right now, employers seem to be looking at it. Sometimes they ask associates with accounts or specific companies to check for them. 

 

NBC4 reported, on Sept 6, 2006, that colleges (such as George Mason University and Virginia Commonwealth University) are warning students about the risks of misusing social networking sites in freshman orientations. Employers, college administrators and police check them. The Secret Service visited a student at Oklahoma State University after a questionable remark about the president. A swimmer at LSU was kicked off a team after unfavorable remarks about the coach. People have been stalked. And so on. Again, the big issue seemed to be reckless posts about drinking, brawls, drugs, possibly hazing. Still social networking sites are viewed by many as "conversation" than "literature." (Sure, many profiles are. Most of what I have seen personally is just silly and innocuous.) At this point, it does seem that social networking sites per se are raising much more visible concerns than are general personal blogs and personal sites created by adults.  Here is the link: http://www.nbc4.com/news/9799380/detail.html 

 

An example of a case where a teenager's blog help contribute to her prosecution by police occurred in Craig, AK and was reported on NBC Dateline, here

 

Sometimes people have disclosed their sexual partners in blogs, resulting in invasion of privacy lawsuits, that seem justified. One is a battle between Robert Steinbuch and Jessica Cutler, "Cybersex Sex Scandal Heads to Trial," reported by Washington television station WJLA on Dec 27, 2006. The link is here.

 

NBC4 had another report on Sept 14, 2006. This time it reported that some federal agencies were bypassing privacy settings on Facebook to look at profiles under the Privacy Act. The report mentioned a new website that keeps track of this problem, including more firings: http://www.bruinpied.com There were reports of firings at AAA insurance and at a Richmond IN newspaper. A college student who wrote a satire online about lying on resumes found he didn't get any calls for recruiters until he removed the satire -- yet he maintains that he intended it as satire, not as "self-defamation," which seems particularly disturbing to employers and hard to assess out of context (given the way libel law works). The NBC4 reporter noted that sites like Myspace and Facebook were created for social networking, not literary publication or "amateur journalism," and that employers should bear this in mind.

 

Michelle Andrews has a story "Decoding Myspace" in the September 18, 2006 U.S. News and World Report. The link is http://www.usnews.com/usnews/news/articles/060910/18myspace.htm.  She re-echoes the practice of employers and college administrators checking social networking sites, but seems to suggest that this may not be as important as the effect that these sites have on the way teens develop socially. One possible rule is not to meet someone new online until one has met the person in the bricks and mortar world.

 

The next morning, Sept. 7, 2006, The Washington Post, Susan Kinzie and Yugi Noguchi presented a story, "In Online Social Club, Sharing Is the Point Until It Goes Too Far, where Facebook has taken some personal profile changes and made them into "newsfeeds" although the company maintains this is with customer consent. Some students objected. Legally, this brings up copyright and right of publicity questions and even compensation issues that the National Writers Union has raised in the past. Georgetown, Catholic University, VPI, and George Washington University are mentioned as schools giving incoming students security orientations regarding social networking sites and perhaps personal blogs.

 

For a Career Digest story on Sept 19, 2006 visit

http://billboushka.blogspot.com/2006/09/career-digest-advisory-on-employers.html

 

http://billboushka.blogspot.com/2006/09/when-it-rains-it-pours-more-on-social.html

 

High school students do have First Amendment rights and ethically they ought to be able to discuss issues that affect them, such as GLBT issues for GLBT students. Students who want to apply for ROTC scholarships or to military service academies would obviously have a problem with the "don't ask don't tell" policy if they say that they are homosexual on a blog or social networking profile. In this context, the DADT policy seems to create profound ethical problems with respect to student speech. Likewise, bloggers should take heed of the legal lessons from the "don't ask don't tell" law for the military and  become aware that "propensity" has real meaning in common law, for everyone (not just the military). A public blog statement that demonstrates an intent or even a "propensity" to engage in some prohibited behavior could get someone into legal trouble or at least on a legal blacklist that they can't get themselves off of.

 

Erica Jacobs, who teaches English both at George Mason University (Fairfax VA) and in the Fairfax County Public Schools, has a blog about teaching and with some student writings, at http://www.erica_jacobs.typepad.com/  with many articles in 2005 and 2006 DC Examiner s (http://www.dcexaminer.com/columns/erica_jacobs/ ).  Particularly interesting is Jan 23, 2006, "Almost free speech" about a student blogging project.  She wrote a column called "The Accidental Teacher" (echoing the name of the movie "The Accidental Tourist") on Feb. 27, 2006, at http://www.dcexaminer.com/articles/2006/02/26/columns/erica_jacobs/45jacobs27.txt  The school system was quite uneasy about the practical risks associated with her blogging project, given the immaturity of some students. She has a followup column on March 5, 2007 "The teacher before a mirror" that appears to continue a similar project, here.  At this point, it is relevant for me to direct the reader to my other response to this problem at http://billboushka.blogspot.com/2006/01/student-profiles-teacher-blogs-and.html

 

Erika Cotton wrote a story in the DCExaminer Feb 9, 2006, "Blogs draw security concerns from schools, law enforcement: Sites often used by predators", at http://www.dcexaminer.com/articles/2006/02/09/news/n_virginia_news/01newsv09blogs.txt

The article reports that student in Pennsylvania was suspended for creating a blog on Myspace in the name of his principal, and the suit was thrown out. Police are recommending to keep photos limited to headshots (or at least clothed), and don't give out address information (it's pretty hard not to give out your name -- that is a point). Another possible concern is that even without a residential address, a predator or stalker could track someone down with a "skip tracer" search site like zabasearch.com. See my letter to Jim Moran on this http://www.doaskdotell.com/personal/submissions/tomoranprivacy.htm An article by Tom Zeller, Jr., "Despite Laws, Stalkers Continue to Lurk Online," The New York Times, April 17, 2006 develops this problem further, and mentions the site iwantu.com  The stalking problem for adults has grown slowly since the late 1990s, and now there are proposals that dating sites conduct background checks!  One victim had her name removed from her NYC apartment building lobby list, and again this whole problem could start to become perceived as a problem for apartment lessors.  

 

A principal at a McKinney, TX high school resigned after her daughter and four other cheerleaders made risque postings on Myspace. The story was on ABC Good Morning America "Cheerleaders Gone Wild", at http://abcnews.go.com/GMA/AmericanFamily/story?id=2770170&page=1  Jan 4 2007.

 

The NBC "To Catch a Predator" series (now up to  5 episodes) has drawn a lot of attention to the dangers posed by chatrooms and webcams, but it also casts a large shadow of discomfort over blogs and personal websites, to the extent that teenagers are allowed to use them, especially since the social networking sites came on line around 2003. Important links are http://www.msnbc.msn.com/id/3032600/   A nationwide survey also reveals alarming results about the readiness of teens to meet strangers online on the web. http://www.msnbc.msn.com/id/12502825/   As noted above teens tend to present personal information online that could attract stalkers and predators to their schools or homes, which a much greater likelihood than with most adults. Also much of the information that they present is trivial and personal (which is particularly perplexing because occasionally enterprising teens do come up with real products and services on the web, and actually become successful). Here are the latest tips for parents ("family contract"): http://www.msnbc.msn.com/id/11030951/  or http://www.msnbc.msn.com/id/3078811/   NBC also presented a sample profile with many problems (such as home address, identifying school, giving favorite locations to hang out) -- many of these could be reduced if social networking sites were limited to "private networks" such as only the kids and parents in one school or one school district.

 

See more about this at http://www.doaskdotell.com/content/blog.htm  

 

Another reference:

 

http://www.raypro.com/tig_e_news/htdocs/jumps/2004/01/jump5.htm

 

Martha Graybow wrote a story for Yahoo!, “As blogging grows, companies eye legal pitfalls,” on Aug. 27, 2005, at http://news.yahoo.com/s/nm/20050826/us_nm/bizfeature_blogging_dc .  Yahoo followed up on September 13, 2005 with a story by Stacey Burling of the Philadelphia Inquirer, “Blogs can help boost a career or sink it,” at http://news.yahoo.com/s/sv/20050913/tc_siliconvalley/_www12634035  The story (quoting Investigative Group International) indicates that some companies now regularly inspect search engines quite deeply for new hires (although they would have to be careful about name mismatches with common names). More firings, such as at Boston University, and a decision by Minnesota Public Radio not to hire freelance writer Curt Hopkins, are mentioned.

 

Mary Ellen Slayter was quite forthwith about this matter with her February 12, 2006 JOBS section story in The Washington Post, "Career Track: Advice for Twentysomethings": "Maintaining an Online Profile -- and Your Professionalism." She claims that most employers now check prospective employees' names in Google and Yahoo! although they would obviously have to be careful with spelling synonyms.  She says that some employers view myspace, LiveJournal and other similar sites. She discusses the website of Tim DeMello, CEO of Ziggs, a Boston company that manages online profiles. They are essentially attractive resumes, although they seem to be designed to appeal to an employer who is concerned about the public image of a candidate. I think that this article stresses that some jobs do depend on the kind of image in public that a person maintains, that she is loyal to the goals of a particular "profession", and that "loyalty" may be double-edged in the views of others. Ziggs makes an interesting comparison to Dice, which maintains resumes for information technology professionals for recruiters, but does not seem as concerned about the "social engineering" of professional reputations through appearances.

 

On May 1, 2006 Knight-Ridder in St Paul MN reported a survey by ExecuNet in Norwalk CN that 75% of 102 executives surveyed (in the fall of 2005) admitted that they use search engines under the table as part of their due diligence about job candidates. About 25% admit that they have eliminated candidates from information gleaned from search engines.

 

On November 17, 2006 an NBC affiliate station (WSLS-TV) in Roanoke VA fired meteorologist after a third party posted a nude photo of him on Myspace, several months after being taken; apparently it was taken by a third party, but its appearance violated a community standards clause in his contract since he is a public figure for the station. The story is at http://www.nbc4.com/news/10344074/detail.html  There is a more detailed story in the Roanoke Times at http://www.roanoke.com/news/roanoke/wb/92003 that indicates that he had gotten Myspace to remove the photo immediately after learning about it, but nevertheless at least one copy got emailed to the station's management. So even removing a blog entry does not always save someone from a firing.

 

There have been various incidents where blogs have spread rumors about politicians, such as in Maryland where a legislative aide to Gov. Robert L. Ehrlich spread rumors about Baltimore Mayor O’Malley.  And at least one Senate staff member was fired for posing nude on an Internet website.

 

Some members of the military, including officers, keep blogs, but some have been disciplined for what they say in them. Problems will occur with security and violations of the “don’t ask don’t tell” policy regarding gays. Commanders have discretion as to whether their soldiers may keep blogs, but most allow them.  For one example of a military blog about Iraq that led to trouble see http://www.justanothersoldier.com/ This blog, by Jason Hartley, led to his demotion and his removal of some content involving photos of detainees, possibly violating the Geneva Convention. Jason will soon have a published book. Mark McMemmott wrote a story for USA Today, May 12, 2005, “’Milbloggers’ are typing their place in history,” with several sidebars (“No specific rules on blog content”) and gives several examples. Army Spc. Colby Buzzell has “My War” at http://www.cbftw.blogspot.com/) which was also abbreviated after his commander requested review authority, but Buzzell will have  two articles published in Esquire and a book published by Putnam. There is Cinnamon Wilkinson’s “A Female Soldier’s Story” at http://www.afemalesoldier.com/ ; Chris Missick’s “A Line in the Sand” at http://www.missick.com/warblog , and “Stephen Kiel Army Reservist” at http://www.stevenkiel.blogspot.com/ .  Two indices of military blogs are http://www.iraqfiles.com/ (maintained by Kiel) and “The Mudville Gazette” at http://www.mudvillegazette.com/ .  Of the about 8 million military blogs about 25% have access restricted to friends and family by password. In a few cases, the military has actually paid bloggers for favorable coverage. Jonathan Finer, Doug Struck, “Bloggers, Money Now Weapons in Information War: U.S. Recruits Advocates to the Front, Pays Iraqi TV Stations for Coverage,” discusses the blog called “The Fourth Rail” By Bill Roggio, http://www.billroggio.com  .  Apparently ex-military bloggers have raised money for their travel and earn quite a bit from advertisers. 

 

The AP has a story Oct 29, 2006 by Michael Felderbaum, "Army monitors soldiers' blogs, websites" at this link, from recordonline.com.

 

Military blogging has come under more regulation in 2007, as detailed on this blog link. Critical is the publication of Army Regulation 530-1 (Operations Security OPSEC) on April 19, 2007. 

 

There have been blogs about top secret projects. William J. Broad provides The New York Times, May 1, 2005, p. 20, “At Los Alamos, Blogging Their Discontent,” with the report that most contributions are anonymous. Douglas Roberts has the blog http://lanl-the-real-story.blogspot.com/ which has many anonymous criticisms and has been mentioned at a House subcommittee meeting about the future of Los Alamos.

 

Howard Kurtz reports in “Media Notes” in The Washington Post, May 2, 2005, “Ethics Pressure Squeezes a Few Out the Door,” that more journalists are getting fired partly because “outsiders – led by bloggers and other critics –have stepped up the pressure. In the Internet age, there is no rug under which to sweep the problems.”

 

A journalist for a tabloid from the St. Petersburg Times was forced to resign after mocking a Florida county commissioner on a blog on her own time, at http://www.cnn.com/2006/US/05/05/columnist.resigns.ap/index.html 

 

Jen Christensen reports in the May 10, 2005 The Advocate, “Jeff vs. The Bloggers” that ex White House reporter Jeff Gannon and various other conservaitve staffers were outed by gay bloggers like John Aravosis. This is a complicated article. A couple of blogs mentioned are http://www.blogactive.com/ and http://www.rawstoryq.com/  There is a detailed account, “Wrong Man, Wrong Place,” by David Margolick and Richard Gooding in the June 2005 Vanity Fair. Apparently Jeff Gannon was quite enterprising with his mix of businesses (some of them gay) and blogs. The VF article does describe the requirements for a permanent White House reporter’s pass: (1) the publication you work for must earn revenue (through subscriptions or advertising or both), and (2) the reporters must earn most of their income from journalism and preferably that publication; if a reporter owns the business, it must provide most of his income. (Gannon had been associated with an online mag called The Talon which, according to The Standing Committee of Correspondents, paid only a small stipend to Gannon and nothing to other contributors.) For short-term passes, such as what Gannon got, the requirements are much more lenient, but it seems that one must be a member of the “legitimate press” to the in to White House briefings long term. Gannon has apparently enjoyed a real roller-coaster ride with all this. Gannon claims that at least two of his blood relatives were threatened when he was outed; this “Salman Rushdie” problem has so far been extremely rare for bloggers even in the 9/11 world.

 

The Washington Times tech-watch on April 24, 2006 encouraged job seekers to study blogs about companies that they apply to (especially Microsoft). A state employee in North Carolina started a blog about Wal-Mart's environmental violations, at http://www.catawbariverkeeper.org/wal-mart

 

Finally, Rebecca Blood provides material on the ethics of blogging.

 

http://www.rebeccablood.net/handbook/excerpts/weblog_ethics.html

 

The Weblog Handbook: Practical Advice on Creating and Maintaining your Blog. Perseus Publishing, 2002. ISBN: 073820756X  Review at this link.

 

http://www.amazon.com/exec/obidos/ASIN/073820756X/ref=nosim/rebeccaspocke-20/002-4804895-0731240

 

Here is another overseas reference that often refers to this file: http://www.simonworld.mu.nu/archives/037779.php

 

Chuck Olsen in Minneapolis is making a documentary film called Blogumentary, described at this reference.

 

The Society for Human Resource Management has a new book by Nancy Flynn, Blog Rules: A Business Guide to Managing Policy, Public Relations and Legal Issues (2006). The SHRM link is as follows. http://shrmstore.shrm.org/shrm/product.asp?pf%5Fid=48%2E28062&dept%5Fid=10 and the blurb places an emphasis on the risk of disclosure of trade secrets or confidential information on personal blogs. Here is a link to my book review.

 

George Packer provides a different and more “positive” perspective in “The Revolution Will Not Be Blogged: To see beyond their own little world and get a sense of what’s really going on, journalists and readers need to get out of their pajamas,” Mother Jones, June 2004, p.28.

 

There is a new company Reputation Defender that will scan the Internet for information about oneself and about family members (mainly children) and in some cases can remove it. It has trademarked "MyReputation" and "MyChild". This company was reported by NBC4 (Washington) on Nov 30, 2006 in the Nightly News broadcast. The founder is Michael Fertik. According to him, about 1/3 of employers do "background investigations" with search engines like Google (as well as searches of social networking sites). Here is the NPR story: http://www.npr.org/templates/story/story.php?storyId=6462504   It is not clear what the takedown policies of ISPs would be (compared to DMCA takedowns) if they received complaints about comments or references posted by others. Another similar company or group is Naymz  blog with e-book text, with an e-book "Not Just Your Space" by Tom Drugan. There is also a new blog entry on Reputation Defender itself, here.

 

Ellen Simon of the Associated Press provides a story on September 13, 2004 “Bloggers’ payoffs proving elusive: On Web. It’s 2 cents’ worth,” The Washington Times, p. A1, in which she writes that most bloggers make very little money (usually from advertising) from their weblogs and usually maintain them to get noticed and convert them into something commercial. But on September 2, 2004 Andrew Sullivan provides Time with the story, “A Blogger’s Story: A Member of the Blogging Class Tells Why they Deserve Your Respect,” in which he explains how blogging provides a second layer of journalism that keeps the major media companies accountable and which requires very little financial investment and sometimes does provide financial rewards.

 

A project called OSM (Open Source Media) plans to merge journalism with individual blogs chosen by their editors. According to the AP story by Anick Jesdanun, about 9% of adults in the United States have blogs or equivalent personal websites. Writers will be paid according to the traffic they generate. I may look into this for the beginning of 2006. Link: http://news.yahoo.com/s/ap/20051115/ap_on_hi_te/online_media

 

The ABTtraining Center for insurance agents is actually offering insurance offices blogging services, with credit for the agency -- subject matter limited to insurance and financial matters, of course.

 

My own situation. My career was in information technology. I approached my employer in 1999 about this, and they mainly asked me not to mention the company by name on my websites. I was in the position on commenting on gays in the military when my employer sold life insurance to the military, although I had taken a corporate transfer to dilute any problem. In early 2000, I took another transfer to a support position that dead-ended and eventually I took a separation and retirement package at the end of 2001.  I have worked in “interim” jobs since.

 

Some employment situations preclude any outside income (a typical example is life insurance agents getting paid training bonuses) and that would exclude income from blogging, or probably even "free" blogging as it could disrupt the agent's public reputation with customers.

 

Below I give my own suggested blogging policy, and besides Groove’s (above) there seem to be some examples. IBM, for example, stipulates that “employees should identify themselves (and, when relevant, their roles at IBM) when blogging about IBM”; “You must make it clear that you are speaking for yourself and not for IBM.” …Bloggers “should not “use ethnic slurs, and they should show proper consideration (for) topics that may be considered objectionable or imflammatory – such as politics and religion.” Mark Jen, at his new Silicon Valley employer (Plaxo), wrote a policy that “employers can’t violate the privacy or publicity rights of another, can’t personally attack employees, authors, customers, vendors or shareholders and can’t post material that is hateful of embarassing to another person.” SHRM (the Society for Human Resources Management) reports that some employers now ask to see personal blogs as part of a job interview process.[14] SHRM provides some articicles about the legal ramifications of regulating off-duty blogging by employers.[15]

 

One other observation: if you write about a lot of things (or other people who write about a log of things write about you) search engines can come up with combinations that are jarring and “misleading” when they happen to occur on the same static or dynamic file. For example, if you enter “Bill Boushka” and “sex offender” into Google you come up with a screenplay treatment and script (however controversial and jarring at first glance) that I posted. You get similar results if you go into ask.com or askjeeeves.com and key in "Is Bill Boushka a sex offender?" It does NOT mean that I am a sex offender. If you enter under the AND advanced search the four words without quotes, you get a lot more references, most of which would not be disturbing to anyone.That’s just how search engines work. Internet use requires a certain maturity to get past this. Unfortunately, some people are unnerved when they see this demonstrated, and fear that their reputations can be tarnishned in the eyes of others just because of carelessly done searches.  (Some of my movie review files have many reviews on the same page, and this results in some amusing search engine hits on the logs.) You could try this kind of search with almost any celebrity’s name and be very likely to find misleading hits this way. Of course, there are convicted sex offender registry websites run by every state and only these should be used for such a purpose.  People do need to learn to use and interpret search engine results properly.

 

I’m including a link to a troublesome Google search.  In this particular example, at the time, my last name appeared only on the copyright notice for the treatment document for a screenplay for a proposed short film. You may get other files back now, but these examples do show how misleading carelessly done searches can be. Of course, it’s possible that this particular search was done in order to show that a particularly provocative static file could appear at the top of the list from Google (let’s say that the search was done by a curious student at home about his teacher.) This underscores the problem with blogging and Internet self-publishing for people with certain jobs, sometimes even relatively low paying jobs. 

 

I do understand now (as of 6/2006) that this incident could be interpreted differently. I had mentioned my site, but not the files shown in the search link (rather other files related to a current newspaper editorial), to a staff member, who had apparently known about the more disturbing file because of some external circumstances at the school that might have made those files relevant.  Arguably, my mentioning the site at work would provide a pretext for interpreting my content in a more negative way, as having a "propensity" for certain illegal behaviors (in comparison to the military "don't ask don't tell" policy where, however, even an online profile of a servicemember could lead to discharge).  For more go to http://www.doaskdotell.com/personal/resume/subupdate.htm  

 

I hope that prospective or current employers or even landlords are not “investigating” people in such a careless, shipshod and misinformed fashion. (Names can be mistaken, too, although mine has an East European unusual spelling and is easily found.) This potential is so important that I would invite comments from the public if anyone else has encountered this; please contact me at http://www.doaskdotell.com/contact.htm   You can get an idea how to use sex offender registries properly by visiting http://www.prevent-abuse-now.com/register.htm  -- each state has its own procedures and generally there is some care taken by states to prevent misleading searches.

 

A more recent story is by Martha Irvine, "Some Rethink Posting Private Info," The Washington Post, Dec. 29, 2006, from the AP, http://www.washingtonpost.com/wp-dyn/content/article/2006/12/29/AR2006122900662.html   At least one person working for a public relations firm removed references to that firm, but I have long thought that personal sites (outside of resumes) should not name specific employers (easily Googled). More students are beginning to whitelist their blogs and profiles to restrict access.

 

Tara Bahrampour has a story in The Washington Post, Jan. 2, 2006, Metro, "'Dear Diary' becomes 'Dear World': Teenagers use sites to vent, communicate," here, to the concern of parents who feel that too much information about the family or its members is being put out for the world to find. Again, whitelisting can limit this concern. Note that English teachers often have students start classes in high school with five minutes of handwritten journaling in a notebook, and often look at the journals, which remain private. 

 

Gary Gentile of the AP has a story "ID Theft Growing Concern for Myspace Users, reprinted in the Washington Post Dec 26, 2006, at http://www.washingtonpost.com/wp-dyn/content/article/2006/12/26/AR2006122600591.html  There is a feature called "friend request" which has been used by spammers to install spyware on user's computers, by using bogus profiles sent to thousands of users as these "friend requests." There have been problems with people installing fraudulent profiles impersonating others (as with an assistant principal at a high school who was impersonated, and who is suing the student), and with persons spoofing myspace users to send spam. Myspace (and other sites) are reportedly working on tighter controls to fix these problems. 

 

 

However, it's pretty easy to imagine that an employer could make up a personnel policy that says that any statement made in a publicly accessible place on the web without going through third party publishing channels and approval, would be regarded as a statement actually physically made in the workplace and subject to workplace conduct rules.

 

There is actually a site (probably many of them) that encourages workers to comment on their jobs, so that other jobseekers can determine whether that employer is suitable. Look at http://www.jobster.com/at/index.html   Of course, employers can see this, too, so if you comment about your employer there, you may be taking a chance.

 

It is noteworthy that blospot.com (Blogger/ Push Button) and Google are beta testing (as of August 2006) a version of blogger that makes it easier for the writer to restrict the reach of his material to a specified group of recipients by email address (a "whitelist" approach). Is Blogger concerned that many employers will soon crack down on all "public" blogging because of the paradigm involved? This version was released in Dec 2006.

 

Likewise,  Myspace and other social networking companies have been exploring various audience restriction mechanisms based on the age of the speaker as well as the audience. There will be more news in this area.

 

There are recent concerns (with a federal policy that went into effect Dec 1 2006) about email and IM record keeping, and I wonder if they could affect site owners and bloggers who get ad revenue or have any commercial intent. The blog entry is here.

 

Caveat

 

Even so, New York State law (and the laws in other states) may limit what employers can spell out in company policies regarding off-duty behavior. The crux would be the likelihood that the speech comes into the workplace because it is in a public place. Adina Green, "Owners neglect to set employee blogging rules," Long Island Business News, March 24, 2006. The Uniondale NY law firm Rivlin Radler said "employers have not stepped up to the plate until there's an issue," and Franklin, Gringer & Gohem (Garden City, NY) noted limits in NY law. Jeffrey M. Schlossberg of Ruskin Moscou Falitichek recommended policies dealing with sexual harassment, hostile workplace, racism, trade secrets, and other similar well known issues normally found in the workplace. The legal uncertainty may well explain why employers "Google" job applicants without telling them anything; that may sound unethical but it creates no legal risks, whereas spelling out specific policies does. This is clearly a serious business ethics issue that needs to be taken up, and we hope that legislatures don't mess it up. 

 

In December 2005, there was a case in Tavares, Flordia where a teenager “confessed” to causing a fatal auto accident by tugging at a steering wheel while drunk. He was convicted after prosecutors discovered the confession. http://news.yahoo.com/s/ap/20051221/ap_on_fe_st/dui_blog_confession

 

The police chief of Synder, OK resigned after his wife appeared in nude photos on the web. (AP story by Tim Talley, Sept. 9, 2006).

 

Human Rights Campaign fired an employee for blogging on the organization's computer in leaking a story about Mark Foley, just before the Sept 29, 2006 resignation. The complicated AP story is by Laurie Kellman, Oct. 26, 2006. The employee was Lane Hudson who had started an anonymous blog http://stopsexpredators.blogspot.com   in July and then gone to work for HRC as a political organizer in September. As in the gospels, there is more than one account of this, even within the same paper (The Washington Blade). A story on Nov 3 by Elizabeth A Perry indicates that Hudson was fired (around Oct. 24) for "independent political work outside of his work for the HRC" -- that is, a conflict of interest problem similar to what I address in my "blogging policy" link below -- where making a blog anonymous would not itself provide legal cover. This Blade story is at http://www.washblade.com/2006/11-3/news/national/hrcfires.cfm  She does mention also that the termination involved misuse of HRC computers. On Nov 10 a story by a different reporter Lou Chibbaro Jr. indicates (only) that HRC terminated Hudson "after determining he violated HRC rules by using the company's (organization's) equipment for his personal political endeavors." Story is at http://www.washblade.com/2006/11-8/news/national/hudson.cfm  That would comport with older and now common employer specified policies using the employer's computers and communications equipment (like phones) for non-business use. It is likely that both reasons were included for the termination, but the fact pattern here shows increasing concern over the conflict of interest problems that can suddenly occur with personal blogs, even anonymous ones. Ironically, one Blade reader wrote an angry LTE claiming that Lane Hudson had accomplished on his own "without compensation" what whole bureaucratic organizations like HRC (with their huge donations and fund raisers) could not do: bring down a corrupt Republican governance of the country. Lane Hudson's tale already merits a book contract or maybe even an indie film.   

 

In early December 2006, the Virginia General Assembly entertained a proposal to require registered sex offenders to register their email and IM addresses, so that social networking sites and chat rooms can exclude them (permanently, even after total completion of sentences). However, often sentences of sex offenders require, after release, that they stay away from computers altogether. There are similar plans for convicted federal offenders on probation and parole. Myspace and other companies are developing technologies to identify and remove profiles of convicted sex offenders. The story is here. Critics are concerned about offenders who have not been convicted (such as the proposal in Ohio to have a civil registry) and this raises serious due process concerns. Tim Craig has a story "Virginia Proposal Aims to Keep Sex Offenders Off Social Networking Sites" on Dec 12, 2006, link here. The Virginia General Assembly measure is sponsored by state rep Robert F. McDonnell, who was quoted as saying We are certainly going to put public safety ahead of these civil liberties concerns," because of the high rate of recidivism among sex offenders. Virginia's colleges must check incoming students against convicted sex offender registries. We would be concerned that over the long haul, social networking sites and ISPs could develop unreliable methods of identifying even just accused sex offenders in order to exclude them, and also that other ordinary sites, even small business sites or some of those like the COPA plaintiffs, could be required to try to exclude offenders from access (just as COPA has tried to require age verification). 

 

An issue related to blogging would be speaking to the press or to reporters at work. Federal agencies typically prohibit this without going through channels (Anne Applebaum, "The Silencing of Science," The Washington Post, Feb. 15, 2006; letter "The Muzzling of Journalists" by Kathryn Foxhall, Freedom of Information Act Committee of the Association of Health Care Journalists, Feb. 22, 2006. Most corporations have similar media policies for associates. A logical inference from this is that associates should not talk about their work on their own blogs or websites (certainly, again, they have to be careful about confidential information and trade secrets and there could be concerns about attracting hostile attention).

 

Another related issue is whistleblowing:

May 30, 2006  Garvetti et al. v Ceballos – By a vote of 5:4 the supreme court rules that whistleblowing speech by public employees does not always receive First Amendment protection from discipline. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties." The Pickering test can be applied to official communications. The Court seemed to continue the idea, however, that speech made as a private citizen by a public employee would receive First Amendment protection. Statements by various speakers, such as Coleen Rowley on CNN, reinforce this interpretation.  Justice Kennedy wrote "When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."  However, it seems that some of the legal tests (like Pickering) for speech that affects the schools are about the same.  

CNN story by Bill Mears, “Court turns down on whistleblowers”: http://www.cnn.com/2006/LAW/05/30/scotus.whistleblower/index.html

http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf 

This case involved an internal memo, not a blog, but the legal principles may be the same for blogs.  

 

In one of the most serious incidents involving a social networking site, Secret Service agents visited a 14 year old girl in a Sacramento Ca high school biology class and questioned her about an apparently threatening myspace.com posting (motivated by opposition to the war in Iraq) which she had once made then had deleted. The agents had visited her home first but decided to go to her school, against the parents' wishes. Later, the Secret Service agreed to delete her record, but warned her that she could have been prosecuted. The AP story is by Dan Thompson on Oct 14, 2006 and was reported by AOL. Most AOL members in a survey agreed that the government was right in questioning her. The ACLU says that this is an ongoing problem. The AOL and AP stories identify the minor. I generally will not repeat the name of a minor here in a case like this unless there is a conviction. 

 

In another very serious incident, two students made up a fake myspace.com profile for a school assistant principal, and made it "self-defamatory". The story is here. This would also be a form of identity theft as well as libel.

 

On Oct. 18, 2006 ABC Good Morning America reported that Wired News reporter Kevin Poulsen had written a program to cull the data from states' convicted sex offender registries and match them to myspace.com accounts, and he found thousands of matches. Generally, convicted sex offenders must stay away from Internet access as part of their release terms, I thought.  Apparently that doesn't work. "Myspace predator caught by code," http://www.wired.com/news/technology/0,71948-0.html?tw=wn_index_6   The incident occurred on Long Island, NY.  The ABC news story is this: http://abcnews.go.com/GMA/story?id=2580950&page=1

 

Another recent controversial practice is "blog slapping" as described on the Jan. 19 ABC "Nightline" America. Here is a more detailed discussion on blogspot. Major examples are advicegoddess and rudepeople

 

There is an important legal case in early 2008 regarding a lockdown of a domain name of an anonymous whistleblowing site, supposedly because of trade secret issues. My blogger discussion is here.  The case involves Wikileaks, domain name registrat Dynakot, and Julius Baer Bank in the Cayman Islands.

 

On June 15, 2005 Electronic Frontier Foundation published an online legal guide for bloggers.  Here are the main URLs:

 

http://www.eff.org/bloggers  (directory)

http://www.eff.org/bloggers/lg/  (legal guide)  note that there seems to be more protection for blogging in conjunction with union organizing or "mutual aid" than about personal dissatisfaction with a job, CNET has this guide.

http://www.eff.org/Privacy/Anonymity/blog-anonymously.php  (blogging safely – especially about work; this is an important link and advocates anonymity for many bloggers, the use of robot.txt files to keep search engines out, and familiarization with protected topics (political opinions, religion, whistleblowing, union organizing – my own opinion is that some persons in certain jobs should not blog even anonymously, but this file certainly is a valuable analysis and advice).

 

On April 1 2006 EFF issued an "April Fool's Joke" about the myspace problem, in which it jokingly said that it had gotten a cease-and-desist letter because thousands of students would never get jobs because of their unfiltered profiles. Here it is: http://www.eff.org/effector/19/11a.php#I

 

Topics covered in the EFF links include

  1. Major cases Apple v. Does
  2. Barrett v. Rosenthal
  3. OPG v. Diebold
  4. Doe Anonymity Cases
  5. Blogging and the workplace (private, public)  http://www.eff.org/bloggers/lg/faq-labor.php
  6. Blogging and schools   http://www.eff.org/bloggers/lg/faq-students.php

· SLAPP lawsuits (Strategic Lawsuit Against Public Participation) http://www.thefirstamendment.org/antislappresourcecenter.html  which are “chilling effect” actions by wealthy interests to stop smaller interests from criticizing or exposing them by threatening expensive litigation.

See also http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation   Generally, some states (like California) have tried to reign in on SLAPP by requiring more factual details at the time of filing to discourage frivolous suits politically motivated;  federal civil procedure seems to have less protection.

See also the website about the documentary film in progress, "Slapp Suit." 

Also http://www.casp.net/menstate.html

· Possible Federal Election Commission enforcement strategies (when blogging about political campaigns)

· Section 230 (of the 1996 Communications Decency Act) which may protect bloggers who host comments made by others from downstream liability. It would appear to protect ISP’s in most situations, although the recent Grokster decision could cloud the air with respect to some copyright infringement (and copyright law has generally held middle parties as potentially liable for participating in infringement). Section 230 apparently does not provide harbor against statutory copyright infringement by contributors or for certain other specific statutory violations. It still seems a little murky.  http://www.eff.org/bloggers/lg/faq-230.php  See also  http://www.bitlaw.com/internet/isp.html , which appears to present a different perspective.  There is a position paper by Jim Harper at CATO on this problem, Spring 2005, at http://www.cato.org/pubs/regulation/regv28n1/v28n1-5.pdf

 

See  http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html

·  Bloggers as journalists (media access, public records access, press passes)

Needed would be coverage of “slippery slope” problems (indirect risks involving identity theft, spoofing, hacking or hijacking a blogger’s server)

EFF suggests (for persons in sensitive workplace situations) anonymous blogging (the ACLU has always defended anonymous speech as essential to the First Amendment, even if I personally think it is not as effective). One would have to deal with the fact that sometimes employers have been able to subpoena the identities of “badmouthers” (or bearers of trade secrets) on trash boards from ISPs. EFF also suggests the use of the robots.txt file to keep search engines out if one is in a sensitive job, or the setting up of a virtual office requiring password sign on by known members.

 

It is noteworthy that some authoritarian countries (China, Saudi Arabia) have cracked down on political blogging, and American companies like Microsoft have actually helped them do so. See the discussion of content regulation at http://www.qlinks.net/quicklinks/content.htm

 

Wired Magazine has a big piece "Six Trends: People Power: Blogs, User Reviews, Photo-Sharing -- The Peer Production Era Has Arrived" by Chris Anderson, with another article "His Space" on Myspace, its corporate owner New Corp (Fox), and Rupert Murdoch, July 2006. The article discusses the business model of social networking, connecting people to people rather than just to content, and how this affects advertising paradigms. 

 

See this reference for a sobering discussion of the legal risks of teen "jackass" videos sometimes posted on video sites.

 

On CNN Reliable Sources on Nov 12, 2006, Jeff Jarvis of http://www.buzzmachine.com  discussed the way that bloggers and websites spread information instantly and transform the paradigm for journalism. Blogs, it was said, are generally not "objective."

 

On July 12, 2007 AP DailyRecord.com reported that the CEO of Whole Foods Market, Inc. anonymously attacked a rival Wild Oats Markets, Inc. on an investor "trash talk" board and then made a bid for the company. The FTC is investigating. But this sort of behavior would normally violate company confidentiality rules and would violate blogging policies for companies that have them. AP story (Dallas, no author's name given, "Whole Foods CEO Attacked Rival Online") link is here. This story was reported today on ABC "World News Tonight."

 

Here are my other important references; (recently fixed and updated 8/2006)

 

On May 1, 2007, ABC Good Morning America had a disturbing story "Stalkers, Sexual Harassers Threaten Female Bloggers: Some female bloggers are shutting their sites, fearing their safety," story (by ABC Editors) link here. This has apparently occurred even with female authors blogs on non-controversial topics (like cooking). Of course, all mainstream blogging software allows the monitoring of comments (reject the hostile or objectionable ones), and one cannot give in to bullies. One should always use a PO Box or separate mail box as a preferred NCOA address, also. (Domains can now be registered "privately" also.)

 

New "feature" essay about Blogs and the workplace at billboushka.com

http://www.doaskdotell.com/controv/professionalism.htm   (workplace professional image and personal blogging) 

http://www.doaskdotell.com/content/empint.htm (White Paper)

http://www.doaskdotell.com/content/infreq.htm  (infrequently asked questions)

http://www.doaskdotell.com/highproductivitypublishing/coirules.htm  (my own rules)

http://www.doaskdotell.com/personal/resume/ethics.htm  (job search ethics)

http://www.doaskdotell.com/content/selfpub1.htm  (self-publishing history)

http://www.doaskdotell.com/content/wchap5.htm  (journalism problem) and look at the incidents reported in note 174 b through d (such as the nurse fired by a Scottsdale, AZ hospital for having her own adult web site, as well as a child counselor in a similar case in Florida).

http://www.doaskdotell.com/controv/coi.htm (Editorial on conflict of interest)

Suggested blogging policy (mine)

07/19/2006  Letter to the Washington Times: “Employers Should Announce Blogging Policies.” (split over two pages)  1   2  or here for original

 

Of course, in totalitarian (China) and many Muslim countries, there is severe censorship of bloggers. The case of Abdel Mareem Nabil Soliman in Egypt is particularly galling, blogspot post here

 

Intellectual property overview (includes new discussion of liability and minors)

NBC Dateline coverage of minors and sexual predator problem

 

http://www.doaskdotell.com/content/  http://doaskdotell.com/  http://www.billboushka.com/  (home pages)

Review of NBC Dateline "To Catch a Predator" series: http://www.doaskdotell.com/movies/tv.htm

Blogspot blog on intellectual property issues: http://billboushka.blogspot.com/

 

Posting April 28, 2008 about Washington Post story about teachers disciplined for their own profiles and blogs, here.

 

ÓCopyright 2004, 2005, 2006 by Bill Boushka   subject to fair use   Contact me with comments at Jboushka@aol.com or at 001-571-334-6107 (USA)

 

 

 

 

 

 

 

 

 

 


 

[1] ABC “World News Tonight”  addressed this issue on Wed. Feb. 9, 2005. The abcnews.com story is by Jake Tapper and Audrey Taylor, “Right to Free Speech Has Limits on the Job.”  http://abcnews.go.com/WNT/Business/story?id=485895&page=1   There were several disturbing examples. Heather Armstrong was fired from a job as a web designer for an unnamed LA software company after she made unfavorable remarks about some of her peer or superiors on her own website (with her own computer), without naming the company or people. An EFF attorney commented on the ABC report that even stories “without names” are not as anonymous as people think, and this idea is well known from libel law where lawsuits have occurred when a single person can identify someone written about in abook. Heather’s website is called http://www.dooce.com/ 

According to the ABC story, at least one employee of Wells Fargo was fired for a blog (Wells Fargo could have been a purchaser of my employer in the late 1990s) and one employee (a reporter??) of the Houston Chronicle was fired for remarks about local politicians (journalists must maintain a public posture of objectivity, as noted in my article). A sixteen-year employee of Kmart was fired for posting sales information under his screen name., “Deep Perple”.    It seems from the ABC story that firings are happening without a company’s having posted a clear blogging policy, which I have tried to do (since early 2000).  That is, besides the obvious things about trade secrets, etc. stick to issues (not people or companies) and don’t do it at all if you make decisions about other people as part of your job. Other examples (Microsoft, Google, Delta) are shown in the text of this page. On http://www.doaskdotell.com/content/wchap5.htm I give other examples at note 174b, such as a nurse in Scottsdale AZ fired for a nude web site, and also a child counselor in Florida fired for a similar site.

ABC “Nightline” presented a positive take on blogging on March 8, 2005 (“Blogosphere”). There was a social of bloggers meeting in Canbridge, and a Virginia high school (on leave) teacher was presented. The teacher had documented some proposed legislation in the General Assembly that would have required an fetal death to be reported to police, even from miscarriage—and this was partly because of poor wording. Because many people linkd to her website, public pressure built up quickly to kill the bill. Although her story was accurate, some of the links were not. The Virginia legislator (John Cosgrove) questioned the ethics of the practice (he claims that a “real journalist” would have contacted him first before running the story), since the blogger has as much potential reach as a “true press” website (the show compared her site to The New York Times site), but there seems to be no accountability and no professional standards of journalistic accuracy or objectivity. (The Virginia teacher said that she is an “activist” and makes no claims of objectivity, either.)  Chris Bury commented that bloggers “are putting people into a public space” without their knowledge or permission; one Cambridge blogger said “I have been fired from four jobs that I never applied to for what is in my blogs.” Bury also commented that real journalism is tedious and requires editing to acquire credibility—but blogging seems to be as much about commentary as journalism. (Mine started as a set of footnote files for my first book).  Now the White House has admitted a “professional blogger” Garrett M. Graff to briefings (the blog is called “Fishbowl D.C.”). A company called Marqui is paying “professional bloggers” to help market its products.

Here are some references on the Cosgrove problem:

http://home.hamptonroads.com/stories/story.cfm?story=80370&ran=43780

 

http://www.naralva.org/s04politicalupdates/press/200501071.shtml

 

http://indorgs.virginia.edu/uvapride/view_news.php?newsID=290

 

 

Note Cosgrove’s involvement with the gay marriage issue, also.

[2] Two days after the ABC story (that is, in the Friday Feb. 11 2005 issue), Amy Joyce provides The Washington Post with the story, “Free Expression Can Be Costly When Bloggers Bad-Mouth Jobs: Even Anonymous Bloggers at Risk When Criticizing Work”. The story was published on Yahoo! at http://story.news.yahoo.com/news?tmpl=story&cid=1804&ncid=1804&e=1&u=/washpost/20050211/tc_washpost/a15511_2005feb10 . Joyce provides several more examples. Rachel Mosteller was fired from the Durham (N.C.) Herald-Sun for an anonymous blog that did not name the company; however through the grapevine it became known and notorious at work. She was quoted in the article as comparing her blogging to a “smoke break.” A blogger (”BGB” or “Black Gay Blogger”)  in Atlanta resigned from a sales job (he was given the chance to take the site down) after calling his boss “Skeletor” and “Wednesday Addams.” 

[3] Stephanie Armour, Warning: Your clever little blog could get you fired; Employers catch on to workers’ Web logs, and some aren’t pleased,” USA Today, June 15, 2005.

[4] Understand however that file-sharing applications are different applications on the Internet, distinct from the World Wide Web as an application with its own protocols.

[5] Not to be confused with Dave Gorman’s “Google Whacking” as demonstrated on the NBC “Today” show Dec 27, 2004.

[6] “Google hacking” is also the term used when hackers look for sites to infect, as with the Santy work based on the PhPBB vulnerability, as at http://news.com.com/Net+worm+using+Google+to+spread/2100-7349_3-5499725.html   As an informal matter, the term is sometimes used as a euphemism for checking up on someone's online activities with respect to employment, personal relationships, maybe even rental situations.

[7] Even so, some companies seem to encourage their own managers to create “corporate blogs” rather than using just formal press releases in a conventional “professional” manner. Look at http://blogs.sun.com/jonathan and http://www.hp.com/blogs/marcello . In 2004 there was a brief legal scuffle instigated by hp over Sun’s blog. The article is Amy Joyce, March 19, 2005 The Washington Post, “More PR Than No-Holds-Barred On Bosses’ Corporate Blogs; Most Corporate Bloggers Don’t Deviate from Company Line.”

Here are a few more references:

 

http://michaelhyatt.blogs.com/workingsmart/2005/03/corporate_blogg_1.html

http://radio.weblogs.com/0001011/2003/02/26.html#a2357

http://forrester.typepad.com/charleneli/2004/11/blogging_policy.html

http://www.washingtontimes.com/business/20061220-115939-8546r.htm

This story mentioned retail blogs, which sometimes have entries by low level employees. I would maintain that lower-level employees should not be expected to use their own names when writing advertising for and employer's benefit. Jen Haberkorn, "Retailers get personal with blogs from inside: marketing tool puts face on firm," Dec. 21, 2006., The Washington Times

 

[8]PlanetOut.com and Gay.com have provided SLDN’s guidelines for how servicemembers can protect themselves online, especially when using their own private accounds. (The guidelines are authored by attorney Sharra Greer). The web reference is http://www.planetout.com/news/feature.html?sernum=875 or

http://www.gay.com/news/roundups/package.html?sernum=875

 

[9] For gay teachers, Lambda Legal Defense and Education Fund (LLDEF) has an overview at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=382

For another perspective see http://www.leaderu.com/real/ri-intro/freedom.html

The relevant Supreme Court case is Tinker v. Des Moines Independent School District; another is James v. Board of Education, or Pickering v. Board of Education, or Keyishian v. Board of Regents.

In this essay, however, the relevant concern is the unsupervised or unauthenticated manner that an employee uses to promote himself and the possibility of  prospective confidentiality breach coming from that, regardless of the content of the speech.

Other relevant issues are political activity and the Hatch Act. The reader will want to do a search on “public employees” and “freedom of speech.”

[10] Also check the “Rate My Teachers” site  http://www.ratemyteachers.com/

 

[11] I had one situation on a telemarketing job which I had been at for only six weeks, when I found the company violating the new (Oct. 2003) telemarketing law. I resigned immediately over the phone and did not come back to work (I did get paid for all of the days). I will decline to name the company here, but I would not feel free to say this if I were still working there.

[12] The article is “The Coming Crackdown on Blogging” by Declan McCullagh, at

http://news.com.com/The+coming+crackdown+on+blogging/2008-1028_3-5597079.html?tag=st.prev

I provide more details at http://www.doaskdotell.com/controv/freespeech.htm and http://www.doaskdotell.com/personal/submissions/tomoranfec.htm  (letter to Jim Moran in Congress).

Brian Faler provides The Washington Post on March 21, 2005 with The Federal Page column, “FEC Considers Restricting Online Political Activities,” but the emphasis seems to be on websites that would provide ads for political candidates (contributions to pay for online ads might be treated like contributions to pay for print ads). The article concedes that there are areas of gray when bloggers post candiates’ news releases, provide links, or endorsements with respect to issues like gay rights.

[13] The first piece has the URL http://www.infoworld.com/2752 and is called “Has blogger backlash come too soon? Knocking bloggers may be fashionable but don’t write off the value that real blogs can bring to business,” Infoworld, April 5, 2005. The second is “The perils of enterprise blogging: Bloggers and the Law: If ignorance is no excuse, then read on before allowing employees free reign over corporate blogs,” Infoworld, May 9, 2005.

 

[13.5] Feb 6, 2005: The Career Digest and the Des Moines Register (Jan. 22, story by Jordan Erin, "Online postings could hurt students searching for work, Des Moines Register, requires purchase) report that Pella Corporation does Google searches to learn more about job applicants. The article expresses particular concern that graduate or medical schools may want to see facebook postings made by undergraduates. This can be particularly troubling if students admit to underage (under 21) alcohol use or drug use. Law enforcement has sometimes used facebook for underage alcohol use prosecutions.

 

[14] USA Today, op cit.

[15] Go http://www.shrm.org/  and search for “blogging.” To see the articles online you must be an SHRM paying member. Jonathan Segal has an article “Beware Bashing Bloggers,” to the effect that doing so with off-duty blogging risks legal problems (June 2005) and SHRM Workplace Law Forum June 14, 2005 and suggests a “case by case” approach. Nevertheless, I think that management employees and employees whose job requires speaking for a company publicly or making decisions about stakeholders should not promote themselves by blogging about controversial issues. Individual contributors would have more freedom.