White Paper: Employment Agreements regarding Employee-owned Intellectual Property: Conflicts of Interest, Trade Secrets, Non-Disclosure, Non-competition

 

In the age of inexpensive self-publishing (as on the Internet or through cooperative publishers) there is a growing "risk" of intellectual property conflicts that individuals develop principally on their own but which their employers or which other business affiliates may perceive as creating infringement or business risk. This area of ethics and law is largely undeveloped because the technology (placing "the press" within the reach of a salaried middle class person) is so new.

 

Let's say at the outset that most employers today are still preoccupied with misuse of corporate information systems within the workplace (or on corporate property when dialed up from home): for example, employees using corporate email for their own personal purposes, surfing personal sites at work, or engaging in forums and chat rooms at work. It is well established that employees do not have an expectation of "privacy" when using their employer's resources.  ABC “2020” covered this problem in 1999 with a report about an employee fired by USAA for loading computer games (particularly the focus of corporate objections in early years of PC use) on her company laptop when she took it home. But problems may occur even when the employee uses his own resources, which is the focus of this discussion.  Perhaps the simplest example of this kind of problem would be the associate’s posting his resume on a public jobs site—and giving away the fact that he or she is “looking.” In fact, an employee taking a corporate laptop while traveling and meeting clients will have a problem if he or she cannot reasonably take a personally-owned laptop at the same time for personal use (Oh – there is Kinkos, of course).  Please understand that this “White Paper” will bring up a lot of points that may sound “theoretical” for the sake of playing devil’s advocate.    

 

The situation of interest in this paper occurs when a salaried employee wants to develop and publish a body of intellectual property on his own and eventually (although not always immediately) use it to supplement or replace his income.  And what can complicate the picture further is the possibility that an employee will want to give away "free content" (as on an Internet domain at first) to build a public reputation so that he may sell himself later to major publishers or entertainment (television, motion pictures) at some time in the future.  This is different than the innocuous posting of "family pictures" on a shared-domain personal web site (although even this kind of “my-place” web publishing implies that in the “Internet age” almost everyone’s life will have a “public component” and that accepting thinking, developed in the 70s and 80s, about lifestyle “privacy” will undergo change as well).. This is also distinct from the use of Internet resources while at work with corporate resources.   The issues are particularly controversial because of the "at will" employment doctrine and the tendency of employers to lay people off rapidly as business climates change, so any restrictions imposed upon outside activities by an employer can become unfair if the employer tries to monopolize the associate's professional and personal expressions. Sometimes (but not always) issues will be more critical with salaried employees than with independent contractors.  The CIA, in early 2005, implemented a policy on books (and presumably other publications and websites) by employees.[1]

 

Some situations are relatively clear-cut. Practically all employers require the signature of "non-disclosure" agreements.  This prohibits the disclosure of company-specific information obtained on the job for the employee's own benefit (even though with the employee's own resources). (Some dot-coms are particularly strict with these.) Most such information (as from data files on customers and employees or other stakeholders) is obviously "proprietary" and "confidential." But generally, employers must state the fact that they regard this information as confidential; and to be regarded as confidential, information must have been obtained from the employer's data resources and during the course of employment.  (An employee would probably have the legal right to use the same information that he coincidentally developed from his own publicly-available resources, constrained by normal intellectual property law concepts like copyright, invasion of privacy, and the like).

 

Even on access to confidential information, there could be a legal trap. Many “responsible” technical jobs require this responsibility (ranging from customer information including medical or credit to information protected by security clearances). Government agencies providing information usually require that contracting companies not allow the unauthorized disclosure of such information to either individuals or to “organizations.”  If an employee needing access owned his own side “home-based” business, would he become an “organization,” or would the organization somehow still be a different legal “object”? What if it is just a proprietorship and he does claim expenses for it on his income taxes? On the other hand, what if he advertises it nationally on the Internet as a .com site? One would hope that common sense would prevail, but government could, if politically so disposed, try to use this concept to regulate the workplace and force employers to prevent most of their salaried people from carrying on their own enterprises.  Government (perhaps under competitive pressure from labor unions) could even maintain “consumer protection” arguments that home-based businesses should have enough mass that they can support their owners.  Maybe this is all libertarian “straw dogs” or maybe not.  This sort of “what if???” thinking occurs a lot in pondering the issues posed by the open technology (and unrestrained opportunities) of the Internet. For example, if confidential material were posted, either on a corporate site or even an individual site, it might compromise privacy because of the way search engines work—“Google hacking.”[2]

 

Employers generally require that employees protect and not disclose "trade secrets."  These are facts (data, processes, business or merger plans, experimental results, even "creative" ideas) not generally known (and not previously published) in an industry and which give an employer a competitive advantage.  But an employer must make the effort to make it clear that an item is regarded as a "trade secret," usually by restricting access to relatively few employees (or consultants).[3] For example, a political interpretation of a particular public policy problem could not be a trade secret unless the employer had developed it in detail and then shared it in a restricted manner with relatively few associates on a "need to know" basis. There was a discussion of this in USA Today, Jan. 29, 2000, "Does your company own what you know?" by Stephanie Armour. A big area of controversy would exist for software developers who want to develop more software on their own time and dime and sell it: companies often require programmers to submit all personally developed programs to them for conflict-of-interest or trade-secret review (a particular exposure with object-oriented software where inheritance and common method libraries are used).  Close to the trade secrets problem is the proclivity of some employees to comment “anonymously” about their publicly traded employers on Internet investor boards, conduct (however inappropriate) which is definitely inappropriate and may result in termination (see http://www.doaskdotell.com/content/morefund.htm, notes on Chapter 5.)  Employers are just now noticing this problem and sometimes hiring Internet investigators to sniff out corporate activism (and maybe rumor market manipulation) by “troublemakers.”  Conceivably an individual who both has access to sensitive or confidential information in the workplace and does his own blogging at home might need an automated “change control” procedure to account for all his own publication and to prove there was no incidental misuse of work-derived privileged information in any audit (forcing him to “prove a negative”).[4]

 

There are also "non-compete" agreements, which may restrict employment with competitors after an employee leaves a company (even involuntarily) or, particularly, with an employer's ability to take clients away from the employers.  In the intellectual property world, this would be of greatest concern to people who had been "employed" by producing intellectual property for other employers or third parties to publish (that is journalists, technical writers, etc., or programmers who develop software code which itself will be sold publicly rather than used internally). Generally, a non-compete clause must be reasonably related to a business need (particularly trade secrets) and not simply be applied blindly to keep a monopoly on a product or service. There is conflicting law on this (as to what would constitute a legal non-compete contract and what would violate “public policy” and unreasonably interfere with a person’s making a living) . One state (California) does not allow these clauses, and other states make them difficult to enforce, but in some instances they have been enforced even against employees who have been fired (Demuth v Miller), supposedly for cause, and even employees (in some states) who have been laid off.  The Associated Press ran a story on September 6, 2001 that reported some outrageous abuses by some employers, who were in a position to practically blackball a former employee even after a layoff. Generally, they have been used more with sales people or even in some cities personal service workers than technical people.  But if a company can buy a competitor (subject to anti-trust laws), why shouldn’t an employee be able to quit and work for a competitor? What’s fair here?      

 

And there may also exist a practical time-management issue.  Many professional positions require long stretches of travel and essentially unpaid overtime for deadlines or production support, although technology is rapidly enabling people to manage two careers at the same time.  Also, many professions would encourage people to take time on their own to get training and certifications, which would interfere with pursuing second careers. 

 

Some employers (including defense contractors) have “no moonlighting” policies, at least for their “key persons.”  This used to be more common in the past, before corporate restructurings made salaried employment less stable and ethically less justifiable. There is some thoughtful discussion of the variations of  moonlighting policies in the Journal for the Society for Human Resources Management, Oct. 2000. (Search for “moonlighting” and the article appears.) Theoretically, such a policy would make it a violation to self-publish anything and sell it, or make money from any activity that requires “work” outside of the principle place of employment.  One rationale for such a policy is that he or she must be available for overtime at the employer’s whim. “Moonlighting” does not involve the use of an employee’s own property (and of his “property rights,” so it may be easier legally for employers to ban it than to ban the ownership of businesses. No-moonlighting policies, at least when they occur in the context of employment at will (see below), are controversial, and flexible policies involving management discretion are often suggested.[5]  A good source is the Society for Human Resources Management: http://www.shrm.org/hrmagazine/articles/1000hirschman.htm. Sometimes employers who invest a lot of training into an associate or even a contractor will insist on time-based no-moonlighting policies, even to include income from strictly private property sources.[6]

 

How does one draw the line between what is an employer's intellectual property and the employee's?  The best example of this kind of problem occurs when a software developer wants to write and sell software or books on software on his own.  Generally, the material that he sells on his own must be "generic" in nature. For example, an author could present object-oriented or "responsibility-driven" design but not specific java methods or classes (unless he made them up on his own). Copyright law is quite generous in protecting the employee's ownership right to his own personal intellectual property even when he has a "work for hire" agreement at work.[7] A related patent law concept for inventions by employees is called “shop rights,” which employers often negotiate to claim the patents of inventions by employees depending on whether any significant resources of the employer were used. A possible unexplored concept in controversies over an employee’s own personal intellectual property could derive from the concepts of “right of publicity”[8] and the possibility that an employee could be required to show that his own property had monetary value before he went to work for the employer.  

 

What about publishing political or social opinions?  This has been common in non-commercial blogging. This may well be a no-no for people already employed doing this (journalists, lobbyists, professional activists ¾ in 1996 a journalist in Tacoma, WA. was transferred to another job for publicity-generating gay-rights related activities done on her own time, and the Washington state supreme court allowed the transfer to stand).[9]  It may be unacceptable for executives in a major company, or for managers having people reporting to them.  For although under the person's own name, generally others will "find out" and the image of the company with the public or the credibility of the manager to deal with subordinates or other stakeholders might be affected. (This gets serious if a company feels, when driven by lawyers, that it needs a “zero tolerance” policy with respect to hostile workplace and discrimination issues—a development that can itself create a lot of tension however well-intended.) A secondary problem could occur when another person writes about such a person’s political or activist activities on the Internet, making that person searchable world-wide by potential employers.  In the future, employers may come to consider a person’s worldwide “publicity” or reputation on the Internet as a job qualification item; the Internet can give anyone his “15 minutes (and usually much longer) of fame.” If a person is a consultant for a particular technical discipline, his fame in a controversial political area might be perceived as diluting his public reputation for professionalism in his income-earning field.

 

Another particular kind of problem can occur for people who work in information systems, however.  These technical geeks may feel that they have no personal accountability for "image" with the public.  However, while not legally "insiders" they may have access to confidential information, which could make their own activities later legally suspect (such as with day stock trading) or indicative and evidentiary (as what might be "read in" to their own otherwise political opinions).  An employee will agree not to mention his employer, but if he really is seriously about establishing himself as a "public figure" with respect to a problem (say, "gay rights") the public will gradually learn how he has made a living and may take his comments, however carefully crafted, as indicative of what may have happened in his places of employment or conceivably as having been "influenced "by confidential information. If he goes to work somewhere else there could occur the suspicion that he is there to gather more underground material for writing. (Part of this "problem" is that a public figure has relinquished some of his common law privacy rights.)  This might be called "the appearance of conflict of interest over publicity rights" and would invoke a lot of poorly developed notions regarding particularly "the right of publicity" in intellectual property law.  Publicity is almost a form of consideration, since it may have intrinsic value and eventually be converted to money (and perhaps brings some extra satisfaction to someone otherwise unsatisfied with what is easily available in personal or family life—and therefore gets seen unfavorably by some as self-promotion or as a feline drawing of attention to oneself).[10]  This kind of problem is not much discussed in legal literature yet, but it may contribute to the impression that some people have, that writing is a profession of its own and that writers should rise up through the ranks writing about things other than their own personal interests, writing "what other people want" (and that one's writing should pay the rent).

 

Many companies publish bios of their officers on the Internet, and many smaller companies and non-profit associations publish bios of all of their staff on their web sites. If the employee makes a name for himself on the Internet, that personal “brand” might conflict with the intended image that the employer wants. Even the possibility that other references to the employee could be found by search engines could become an issue, particularly when the person’s name is unusual and easy to identify, and with sites like Google that cache older copies of pages (unless specifically directed not to index or not to cache by HTML meta tags).[11] On the other hand the sheer volume of references to many people dilutes the impact of references to them. Similarly, persons who share their work, especially video or music, through file sharing mechanisms (however legally with their own work) and who manipulate their shared folders effectively or setup their computers as supernodes may become noticed. Customer service or support employees (often paid less) typically use only their first names at work (or, as sometimes with debt collectors, aliases), and this would avoid this problem. In the future (after 2001) we may gradually see companies developing policies regarding the issue of an employee’s management of his or her own “name” or “brand” in public spaces on the Internet, for positions beyond the “obvious” in media or any executive ranks. Then, what about “free speech”? One possible wrinkle would be expecting the employee who wants to have a controversial site to keep it out of search engines and behind a password-protected logon, which would limit its reach unless it could actually pay the person’s way with revenues. [12]

 

The rise of the Internet is inevitably going to cause employers to consider policies regarding what employees may self-publish, even on their own time. Will companies eventually start to inquire about personal sites and web references as part of employment screening, or would this be protected as a free-speech claim?  Some rules will be obvious, such as that an employee must not make comments about his employer (as on a discussion board for that company's stock price).  There may be a danger that some employers might invoke loyalty clauses forbidding published discussion of any public issue that has a material affect on the company (particularly if the company is involved in a questionable business, say tobacco, or has a politically vulnerable "fraternal" customer base).  Or employees could be prohibited from using their own names for commercial purposes (such as .com domains, for which “.name” will be available as a non-commercial alternative in 2001, according to ICANN—but here employers may eventually want to track these .name domains, which are likely to be used for “resume sites,” too[i]).  Employers with intellectual property expertise could credibly prohibit some key associates from inserting themselves into any public controversy (and instantiating themselves as "limited public figures") on any issue that can affect the employer's stakeholders (and this would dive into a labyrinthine catacomb of unexplored law: the notion that any party could disclose a "public figure's" employment if not volunteered, that most people have a "reasonable expectation" that expertise in an issue is obtained in a conventional workplace and that therefore than be a military-style rebuttable presumption that corporate confidentiality has been compromised even if this is objectively untrue -- it gives one the bends).   This would be most unfortunate.  It is becoming increasingly clear that most public policy issues (including those particularly affecting gays and lesbians) are rooted deeply in personal behaviors and values and cannot be explored properly if any conjoining issue or body of embarrassing facts is "left out."  Yet this kind of problem may well help explain the popularity (and power) of well-funded lobbying organizations (often with ample hired full-time staffs of their own)  which argue more from the point of view of  adversarial "suspect classes" or "groups" than of individual rights and tends to keep a lot of political bartering a battle between "special interests."  It wasn’t so long ago, after all, that people got fired from being seen on television  showing up at gay events, and throwing money at lobbying organizations (even at the expense of supporting related causes—like abortion or affirmative action--for other groups with which one might have a personal disagreement) was the only way to organize to protect oneself.  In a modern "politically correct" polity, there is a natural temptation to "protect" gay employees with ENDA-style anti-discrimination policies and laws so that they (the libertarian ones) won't become "troublemakers." We should, however, recall another concept from libel law: "the Opinion rule."  

 

Some people may view a professional’s involvement in controversial public policy issues outside of his professional “expertise” as a distraction from that person’s publicly perceived professionalism. If a computer professional inserts himself into the middle of “gays in the military” does that create the impression that he is less dedicated to his “profession”? What if the issue is one where technology is more relevant, such as Internet censorship?

 

A good example of a "conflict of interest" clause over intellectual property rights (similar to what accounting firms enforce to protect clients whom they audit) may be found at this site:   http://www.americanbusinesspress.com/ResourcesCode.html. However, to that the extent that the government (and particularly the SEC) might try to regulate the behavior of writers and editors, courts will almost certainly hold that, under the First Amendment, a distinction must be drawn between discussing issues (social and political) and discussing specific organizations or entities and giving advice about investing in them.  In the wake of the Enron scandal, there is disturbing new attention to the “Food Lion” issue of journalists “moonlighting” with companies that they are likely to write about later. This was discussed (particularly by Andrew Sullivan) on CNN’s “Reliable Sources” on January 26, 2002. Again, there is a gray-zone between discussing issues as a form of political participation while still working, and discussing specific companies or entities while working even if the entities discussed do not have any material connection to one’s sources of income.   

 

The public has always regarded “publicity” as a benefit (or burden) that goes with established employment, particularly in the media.  Insurance companies write liability insurance policies separately for people who become public figures “professionally” (as entertainers or elected officials).  In the age of the Internet, anyone—depending perhaps on the scale and substance of his homework-driven effort--can become a public figure and legal and business practice is far from prepared for this trend. (There is also controversy in the literary world about how many writers can really make a living by writing alone—many can’t—and there is some tension among writers over this point.)  A fundamental question for future legal battles could be the extent to which an employer may claim ownership of a salaried professional’s “right of publicity.”  Ironically, however, the “employment at will” rule (inasmuch as the rule denies the existence of an implied or explicit employment “contract”) would interfere with an employer’s attempts to claim legitimate property rights (other than those directly work-related) of an associate, even when salaried. Another question would be whether the use of pen names or pseudonyms, or the recognizability of persons with common names would become relevant. Still another issue would be whether religious expressions could be treated deferentially.

 

One interesting question can come up with persons who “publish” their materials with a more “private” kind of fire sharing, sich as gnutella. This type of software encourages a kind of “choir building” for intellectual property content that is effective within a targeted community but not necessary a obviously visible to the general public. As a “publishing” mechanism, it is not yet really well known outside of the network security and music communities. Likewise, conventional websites can, with advanced XML and style-sheet technologies, be designed so that they are more tailored to specific users and not as reachable by the public at large, so an associate’s use of these technologies to publish his own ideas could eventually provide another source of controversial discussions.   

 

Some relatively low-paying occupations actually depend upon the local but “public” reputations of individual workers with customers, such as personal service workers, who are sometimes encumbered by post-employment non-compete clauses, mentioned above. (Richard Mosedale, “Spa Wars,” Minneapolis City Pages, Oct 4, 2000).   

 

Some specialized jobs, clearly, do require that employees keep a low public profile. These jobs would include particularly overseas jobs in culturally, religiously or politically sensitive countries (as in the Mideast). Will employers or even regulators develop the notion that some positions require a “keep a low profile” policy in a manner like a “no moonlighting” policy? How would this be drawn up? By prohibiting the employee from engaging in off-duty attention-getting behavior, especially with respect to controversial issues or with the intention of gaining publicity or commercial gain? Management positions (with direct reports), positions requiring speaking publicly for the company, or making substantive discretionary decisions about stakeholders would seem to be the most likely to become involved in such a trend. So would the positions of salaried journalists, who must maintain the public appearance of objectivity. But it is all too easy to envision this development. Perhaps, though, amateur bloggers would not count.

 

This concern should not normally deal with private political contributions (at least in ordinary legal amounts). The Federal Election Commission makes individual contributions public (although they are not convenient to find), and there is going to be a new website fundrace.org (as of 3/28/2004 that domain was still parked) that can provide information about political contributions by street address or location or geographical area.  No one would expect these to become problems with most mainstream employers, but some employers have their own PAC’s (political action committees) and invite their employees to participate, and in the distant past there was sometimes strong pressure on even mid-level employees to participate. (See Leslie Walker, “Web Watch,” The Washington Post, March 28, 2004.)

 

There will be a need to develop standards of ethics in self-publishing and Internet publishing, particularly when there is a possibility that others may be affected as a person's writings become known and take on potential commercial value.  For example, a person continuing to work in a conventional job while doing this might establish ownership of his own time and computer resources by never being paid overtime and by owning all computer hardware and software licenses used in his home, even if partially for his employer's benefit.  There might be a reasonable time limit on the length of his remaining time in a salaried fashion (until he/she is really able to earn a living free-lancing or, at most, W-2 hourly employment with relatively limited or circumscribed discretionary responsibility). Companies may eventually be inclined to develop policies worded around the idea that a person might use the Internet to further his own commercial purposes nationally or worldwide, particularly when providing editorial content (we see problems like this when discussing the “speech rights” of military members in conjunction with the gay ban).  To minimize the impression that his views are connected to the company’s, there should (in most cases) be an agreement that he will not have people report to him, that he will not become "an insider,"  that he will not let the company use his personal name for company’s own public purposes, and that he will maintain an invisible “back end” or support role within his employer and minimize discretion or intellectual ownership in the performance of his official job duties. Extreme care must be taken when the employer is a "fraternal company."  Or the company, in some cases, may wish to purchase some kind of ownership of the activities. Indeed, some people in the writing world believe that one should not take upon (uncommissioned) publishing projects intended for commercial “general public” consumption until one is prepared to make a living at it (hence people quit their jobs in order “to write” as in the movie TV Going Home), but this notion has apparently never been accepted as a legal principle.

 

Again. balancing all of this “devil’s advocate” talk is one important counterweight: employment-at-will. Since employers downsize and lay people off based on their own “selfish” interests, shouldn’t employees be able to compete with corporate America by build their own dreams while still working?  Should employees be able to gradually change “professions” while still working? Good question.  Go see the movie Croupier (2000, TNG films).

 

So, again, this is a little-explored area. I would hope that the legal and business custom infrastructure around self-publishing and cooperative publishing will recognize the “right” of people to do this as second careers and will establish proper standards of ethics in doing so.

 

One privacy law attorney that I ran this by reacted with the observation that most employers would probably hold associates to a generic “professional conduct” standard with respect to one’s own “right to publicity” and not try to micro-manage what an associate may not do with his own resources (outside of discussing the company, its stakeholders, trade secrets, etc.).  

 

However, starting around 2001 there has occurred a gradual accumulation of some references on the web about employee blogging (employees as bloggers). One can see this with a quick Google search on the combination “employee” and “blogging.” Here, however, the term “blogging” usually refers to a specific practice of entering diary-like entries into a log in reverse time sequence, where my concern has been more with unsupervised self-publishing that has commercial potential. A few companies, such as Groove in Massachusetts, have tried to come up with what they see as reasonable blogging policies, particularly the recommendation that employees place conspicuous disclaimers that the opinions expressed on their websites are their own, as well as abstinence from mention of specific incidents in their employer (beyond the obvious legal requirement for respect of confidentiality and trade secrets). In infrequent cases, the mere existence of a blog by a key employee (because of the public “presumption”—that good old term from the military gay ban—that the person represents the company) could harm securities negotiations and be illegal according to S.E.C. rules. Some of the references seem to indicate that the main danger occurs with disparaging an employer on investor trash boards (where anonymity is not always a protection, since employers have been able to subpoena the names of posters from ISP’s). At least one reference, however, indicated that he was disinclined to discuss politics or sex in a public space like an Internet blog because he had kids to support! On Dec 19, 2002, The Washington Post ran the article “Free Speech—Virtually: Legal Constraints on Web Journals Surpise Many ‘Bloggers’”, by Jennifer Balderama. This article discussed Groove, and also indicated that many bloggers are naïve about such matters as copyright infringement, trade secrets, libel, and invasion of privacy. (The reader may purchase this article from the Post).  Will more employers eventually develop blogging policies or (sometimes) “public anonymity” (or “low profile”) policies?

 

Another recent opportunity that has offered celebrity to a small number of people is “reality television,” where “ordinary people” compete in some particular scenario (such as romantic match-making) setup by the entertainment company. Justin Timberlake may have been on to something when he wrote his controversial song and poem, “Celebrity.”

 

For a script of “infrequently asked questions” on this issue, seehttp://www.doaskdotell.com/content/infreq.htm

 

We could play devil’s advocate with this further: Minnesota Governor Jesse Ventura (according to USA Today, Nov. 17, 2000) has taken on a media job as a wrestling commentator on NBC for 12 Saturday night broadcasts in 2001.  Does this set a good example?  Minnesota law does not allow state employees (presumably the includes the Governor) to use their office or even their “prestige” for personal outside gain.  So maybe this in an unacceptable conflict of interest legally.  But if Ventura is not allowed to engage in an entertaining enterprise that I think reflects upon his past achievements, what kind of example does this set and what kinds of people will states and the Congress and even the Presidency be able to attract in the future?  Public service needs more creative thinkers, not just more professional (“licensed”) career politicians.  

 

So, a number of years after the open personal use of the Internet for self-promotion, new questions come up about balancing professionalism with free speech and intellectual honesty with speech. If one writes on the dime of an employer, he or she is generally not as free to tell the whole truth.[13] To avoid distracting customers and other stakeholders, an employer might reasonably expect that a well-paid associate appropriate even his public reputation for his established profession and then leave the controversial problems related more to personhood to established lobbying organizations—the model from the past, but one that suddenly seems so intellectually unacceptable now. “You work for US, so WE own you!”  Where should be balance be struck?  There are genuine conflicting interests here, so the only answer is to work out reasonable rules and principles.[14]

 

For a model intellectual property conflict of interest policy, see http://www.doaskdotell.com/highproductivitypublishing/coirules.htm.  These policies are aimed more for freelance writers than for “professional” journalists[15] or members of the press. Companies who believe that they may have an issue with potential conflicts over what an employee (especially those with direct reports or discretionary decision making authority that affects others substantially) does with his or her own individual publicly should state clear policies on their job application forms and application websites.

 

Here is a special discussion of blogging and conflict of interest.

 

ÓCopyright 2000 by Bill Boushka and High Productivity Publishing

Email me at JBoushka@aol.com

Visit the doaskdotell site.

 

Mary Ellen Slayter provides a high-level discussion of “conflict of interest” in the workplace in “Double Check Your Politics at the Office Door” in The Washington Post, Business Section, Aug. 8, 2004, p. K1. She provides this reference for the Hatch Act (as implemented by the U.S. Office of Special Counsel) for federal, DC and some state employees: http://www.osc.gov/ha_fed.htm Apparently publishing and blogging do not by themselves violate the act in most cases (unless classified information is involved, which can cover a lot of territory).

             

 

 

              

 

    

 

 



[1] Walter Pincus, “CIA Revising Policies on Books by Employees: Recent Criticism by ‘Anonymous’ Cited,” The Washington Post, Jan. 12, 2005, p. A19.  Imperial Hubris: How the West Is Losing the War on Terror, published in 2004 by Brassey’s, is really by retired employee Michael Scheuer. Besides ensuring that publications do not contain classified information, they may not have an adverse impact on job performance or on the CIA (or specific components like the Counterterrorism Center CTC). The CIA was concerned that Scheuer’s book would create the appearance that the CIA agreed with his opinions since he was allowed to print it. Duane C. Claridge (“Dewey”) had written a book about hs CIA career (Spy for All Seasons: My Life in the CIA) in 1996 (Simon & Schuster),.

 

The Department of Homeland Security announced, in early 2005, that it would drop a requirement that employees and contractors sign an agreement not to disclose sensitive but unclassified information. “Sensitive” is any information that could “adversely affect the national interest or conduct of federal programs” or violate a person’s privacy. The story is Christopher Lee, “Homeland Security Dropping Pledge of Secrecy for Workers,” The Washington Post, Jan. 13, 2005, p A19. 

[2] Yuki Noguchi, “Online Search Engines Help Lift Cover of Privacy,” The Washington Post, Feb. 9, 2004.  Any items, such as social security numbers, on a public Internet server (in many formats now) can be indexed by search engines unless the file is placed on the server’s “robots txt” file. Since search engines cache these references, they can be difficult to remove, although most engines provide a way to remove specific files, including caches.

[3] An extreme example is the NBC Mark Burnet show The Apprentice (Donald Trump’s “You’re fired!”) where contestants can incur a $5 million liability if they disclose the outcome before airing. Similar provisions might incur for show employees and production assistants.

[4] Even outsiders (non-employees and non-contractors) can run into trade secrets issues. Nicholas M. Ciarelli, (pseudonym Nick de Plume) now a Harvard sophomore, has been sued by Apple for publishing scoops of upcoming produces since he was 13 on http://www.thinksecret.com/  The Washington Post story appears Jan. 14, 2005 as “Teen Web Editor Drives Apple to Court Action: Product Leaks Draw Suit,” Jonathan Finer, who writes that Ciarelli “is part of a legion of Internet news gatherers whose influence is expanding as concern grows in some quarters about their accountability and journalistic standards.” My own practice is to repeat only news that has appeared in reputable sources, but even so it might be possible for me to repeat previously published but still privileged information.

[5] NIH (The National Institutes of Health) announced on 2/1/2005 a policy forbidding GS employees (apparently all employees) from moonlighting with pharmaceutical or medical equipment companies, and that would include writing for them, as well as owning shares of these companies over certain amounts. See Rick Weiss, “NIH Will Restrict Outside Income: Tight Rules Address Concerns About Conflict of Interest,” The Washington Post, Feb. 2, 2005, or Rita Rubin and Elizabeth Weise, “NIH limits scientists’ outside work: Aim is to avoid conflicts of interest among employees (apparently all employees, but especially researchers or scientists) and drug firms, medical equipment vendors, health insurers or HMOs/PPOs, or any entities that compete for NIH grants,” USA Today, Feb. 2, 2005.  The NIH release is http://www.nih.gov/about/ethics/020105COIsummary.pdf   The policy suggests that writing subjected to peer review from a non-conflicting entity is OK, but it does not specify a rule about strictly self-published or cooperatively published writings requiring little money. The rules on my own COI page (http://www.doaskdotell.com/highproductivitypublishing/coirules.htm ) would likely fit in these circumstances.

[6] For example, I have encountered a life insurance company that requires new soliciting agents to sign “no outside income” agreements for the first three years, a startup time for agents when they may be receiving “training bonues” to build their income while prospecting for clients. These agreements may even include no income from royalties (past or present) for music, books, or published articles (even those owned by the agent in the usual copyright sense) or from owning rental property. (The training bonus becomes a kind of “rent” or “lease” on this property, perhaps.) The insurer will insist that this prevents hidden conflicts on interest (like rebating) and may be required by the SEC (for securities) or state insurance regulators, but it seems more related to protecting the investment that the company makes in training the agent (which would be a loss if one of the agent’s own deals paid off and he quit). 

[7] A level-headed discussion of  “work for hire” is available at Findlaw.com, for example http://www.inc.com/articles/hr/manage_emp/hire/17162.html

 

[8] This may be the place to mention that Internet technology has made it easy to locate information on most ordinary people with sites like zabasearch.com.  These lead to links to major search engines that show what that individual does on the Web. It may be possible to track down where someone lives (even for illegitimate or harmful purposes) even when that person does not publish his or her residence, and it may often be easy to locate where some works. Of course, this technology is useful to skip tracers (for debt collection, judgments, etc), but could it fall into the hands of terrorists? See http://www.doaskdotell.com/refer/intelct.htm for more (look for “personaldata-banking”),

[9] There has been recent attention (in 2004) for this in conjunction with the gay marriage debate, especially because of unrelated scandals at several publications over journalistic integrity. See note 132 at http://www.doaskdotell.com/content/wchap5.htm (specifically http://www.doaskdotell.com/content/wchap5.htm#conflict)

 

[10] Tom Zeller, “Breach Points Up Flaws in Privacy Laws,” The New York Times, Feb. 24, 2005, discusses the potential privacy breach at ChoicePoint, as well as data collection by credit reporting companies, LexisNexis (belonging to Reed Elsevier – R. R. Bowker, Books in Print), Acxiom, and other data brokers. These companies (often used by professional business databases) tend to focus on formal commercial transactions, information used by lenders, employers, landlords, as well as promotions.  Data that they hold generally does not result from “self-promoting” activities, although the companies could certainly move in that direction and link up with “Google hacking.”

On March 9, 2005 Paul Roberts of IDG News Service reported, “Hackers breach LexisNexis, grab info on 32,000 people.”

[11] Also, it is not always necessary to code HTML metatags to be picked up by search engines. Many major engines can index all combinations of words on a page, and the ranking may be based on the presence of other links to the page from other domains, an observation that could potentially make unsolicited links an issue. In recent years engines have been better at searching and indexing dynamic content, message boards and pdf files as well.

 

[12] The Minnesota Workforce Center  newsletter “Career Connection” presented this comment in the April & May 2003 issue, in an article “Job Hunting and the Internet” by Kay Roseland of the WorkForce Center Staff::

“Go and Google your own name. Do a Google search, put your own name within quptes and see what turns up! (If there are likely others with your name put in [Your Name] Minneapolis” to narrow the search.) Why would you want to do this? Because employers and recruiters do it—they’re curious about what may turn up too!”

 Now, as of April 2003 no employer has told me that it does this. Would an employer refuse a job offer because it did not like what it found? I hope that it would not unless it tells the applicant that a “publicity” search is part of the application process and publicity is part of the job (as it is in many but not all jobs, as discussed in this article and other places on this website). Typically, with more regimented or technical jobs employers are reluctant to bring up issues outside of the workplace, and generally applicants should be wary of doing this unless publicity is part of the job, as noted. Of course, Google isn’t the only search engine (try it with Teoma, for example). But will employers gradually realize that the Internet can make anyone a celerity?

 

The other side of this coin is, or course, is that employers in the “hidden market” can use search engines to look for candidates with very specific combinations of skills or publication histories. So this can also help a job search.

[13] This brings up the fact that Armstrong Williams and Maggie Gallagher were both paid by the Bush administration to write pieces promoting conservative causes; see http://www.doaskdotell.com/controv/coi.htm

[14] VMI (Virginia Military Institute) in 2004 had an incident where some cadets posted Halloween pictures imitating Nazi costumes and making fun of homosexuals on a public (non-school) website, resulting now in a school investigation.

[15] The book Trading Places, by R. Foster Winans (1988, St. Martins Press), gives a pretty graphic account of what it takes to become a publicly recognized professional journalist with press credentials (that is the first-person story of a journalist who gets caught up in the insider trading scandals on Wall Street in the 1980s).

On May 11, 2003 The New York Times published a lengthy and detailed account (“Correcting the Record: Times Reporter Who Resigned Leaves Long Trail of Deception”) of  journalistic fraud” by one of its reporters, Jayson Blair. Although the detail of the report seems to amount to a pillory, the real value of the story is the account of the steps it takes to become an established journalist prepared to take on sharp-edged controversial stories and issues. A paid journalist cannot create the appearance of favoring one side or the other on an issue (relating back to the Tacoma case, mentioned above).

The next day, May 12, ABC “Good Morning America” ran a story about former writer Stephen Glass, fired from The New Republic in 1998 for fabricating articles and informally sentenced to lifetime silence; yet he has had a novel based on these experiences, The Fabulist, published in 2003 by Simon and Schuster. Many colleagues felt that he has shown no shame or contrition.



[i] The .name suffix became available on Jan 15, 2002. The domain names will be processed by a British firm, Global Name Registry. It is likely that many people would view these domain names as (by definition) low-profile “personal” web sites, in spirit similar to that of Hometown AOL. .