DOASKDOTELL.COM: Notes about Site Persistence

 

The Facts:

 

I (“John W. Boushka” aka “Bill Boushka”)  have three domains: doaskdotell.com, billboushka.com, johnwboushka.com and some blogs on blogspot.com.  Doaskdotell.com is the largest and main domain. The domain is paid for through 3/2007 and the domain name is paid for through 12/2007. There is another link that explains the domain name usage policy.

 

The Issue:

 

Of course, the sites (especially this one) have a lot of psychologically and socially provocative material. (The do not have pornography or violence). As I have noted elsewhere, they are in a public space, easily found by search engines, and as a result there is a potential for them to cause disruption (“secondary publicity”) in certain kinds of jobs or environments connected to me. 

 

I am currently “retired” but I am looking for certain kinds of opportunities (see links below).  The following Policy explains my intention of how I would handle this issue during a few employment scenarios that I could anticipate.

 

Policy

 

The terms individual contributor and key contributor are defined at a vocabulary link and at a suggested blogging policy link. For purposes of this policy, they are explained in more detail just below. The general policy is that all self-publication ceases and all sites are removed within 30 calendar days of becoming a key contributor, and in some cases, all publication ceases within 180 calendar days or obtaining a salaried position with full benefits. There are certain variations and interpretations, detailed below. In no case is it possible to remove (or have removed) lawful references (such as bibliographic references and hyperlinks, as well as third-party-reference search engine search results and caches) made by third parties. I am aware that there are "reputation cleansing" companies that offer to do something like this, but such services generally apply only to illegal content from third parties. 

 

There are no restrictions on the development and display of personal websites, blogs, or social networking profiles, when access to these materials is restricted to known whitelists of approved individual recipients known to be outside the employer stakeholder base.

 

Cooperative publishing, with a company that provides oversight, monitoring and content limitation, may continue with respect for normal business conflict of interest rules.   

 

Suggested Employee Blogging (Personal Weblog) and Personal Website Policy for Employers

 

The following sample policy would be reasonable for most employers in mainstream American businesses, such as software development, financial services, securities, insurance, health care, retail, manufacturing, and media. It would tend to be applicable mainly to publicly traded companies. But many of the points shown here could also be adopted in the non-profit world, by NGO’s, school systems, local governments, and the like.

 

Background: Why does (the Employer) need a blogging policy?

 

Most rules of conduct for the workplace contemplate behavior that would take place within the physical boundaries of the workplace or within sight of the customer or client. Generally, these rules depend largely upon common sense but are particularly concerned with two big areas. The first area is the possibility of conduct that would create a hostile workplace (including sexual harassment or inappropriate remarks about race, religion, sexuality, and the like). The second area is the possibility of compromise of business secrets or confidential information, especially what are legally known as trade secrets. This possibility is particularly troublesome when there are negotiations regarding the sale of a company’s securities.

 

Since the middle 1990s, technology has allowed individuals of average means to set up web domains which can be accessed almost anywhere in the world from a public space. Previously, individuals could be “published” in most cases only with the supervision of a third party (or with considerable financial resources, which have also become less with regard to the self-publishing of books).  Comments made by an individual about his or her workplace on his or her own domain, since they normally can be accessed by other stakeholders of a company at any time, are, in some sense, “omnipresent” in the workplace. The same would hold for comments made on message boards, news groups or “trash boards” regarding a company’s stock, as run by various web companies. The possibility of unexpected publicity can come from sites on the World Wide Web, self-published books or newsletters, and even from peer-to-peer file sharing.

 

Sometimes, persons in the general public will be able to identify the employer even when the blogger is anonymous and the company is not named. In actual practice, sometimes circumstances in an organization are unique enough that others can identify them. This problem is well known in intellectual property law, as sometimes lawsuits have occurred after the publication of novels based on real events with only the “names changed.”

 

There is also a danger that, when there is a large amount of material in one blogging site, the public may believe, from the general tone or slant of the material, that the circumstances in the workplace can be deduced. There is a small but occasional possibility that the comments made by an associate on his or her own weblog could, even unintentionally, affect the company’s relationships with customers, shareholders, employees, or other important stakeholders. 

 

On the other hand, an employer will not want to compromise an employee’s off-job activities more than necessary, and will not want to get into the business of censorship of employee intellectual property. Furthermore, whatever the legal technicalities of “employment at will,” an employer should not dismiss associates summarily for off-duty behavior that employees may not always understand as having the potential to be harmful. Therefore a general blogging policy is appropriate.

 

(1/2006). Generally, a blogging policy would apply to any personally owned website with potentially provocative content. It would not matter of the site used blogging software or was formally organized like a blog (such as reverse chronological order). It is true, however, that many formal blogs are limited in the scope of their content, where as other website formats are often more expansive. But a “blogging policy” could well be called a “personal website policy.”

 

(3/2006).  In early 2006 there have been extensive media reports that employers are starting to check job applicants and possibly current associates for profiles and personal logs on social networking sites or personally owned sites, often with search engines.  Some employers will be concerned about the impression that personal content entered onto a public space with a “free entry” mechanism will make on stakeholders about the speakers. Members of the general public are likely to react in an unpredictable and sometimes “irrational” manner to such material, depending on widely varying cultural and social backgrounds. Employers should conduct these searches in an ethical manner, should base the searches on the job duties performed, and should announce their policies to job applicants and associates in advance in a conspicuous manner.

 

The public benefits from honest debate about issues in public spaces by individuals. It is not appropriate that employers censor this debate and stilt the content for “appearances.” Instead, personnel policies ought to reflect the view that some persons should not use “free entry” mechanisms to promote themselves as individuals in public when their specific job duties have major public visibility or consequences.

 

Policy for Individual Contributors

 

Generally, individual contributors (who are usually salaried or hourly associates or are contractors or freelancers) may self-publish in print and on the World Wide Web and similar vehicles, without prior censorship by the company. (An individual contributor is an associate who does not fall into one of the categories given below, in the next section; that is, the associate is not a key contributor.) Individual contributors, whether or not they identify themselves by name in public, however, should follow these rules when doing so:

 

· As with other forms of communication, do not engage in personal or sexual harassment, unfounded accusations, or remarks that would contribute to a hostile workplace (racial, sexual, religious, etc.)

· As with other forms of communication, protect company confidential information and especially trade secrets

· Do not mention the associate’s connection with the company. (12/2005). Be careful with personal narratives, especially “Socratic self-incrimination” (below) as these can be misconstrued out of context by others.

· Avoid discussing the associate’s employer (whether or not the employer is named) or other specific stakeholders, or incidents that have occurred in the workplace and that are not generally known outside the workplace. Do not show images of company premises or property.

· When addressing controversial issues, emphasize the issue and underlying principles of debate rather than specific parties involved.

· It is acceptable to mention an incident that has occurred within the company if the incident has first been reported through the established media or press, and that first report is identified in a normal bibliographic manner.

· Do not appear in pornography

· Do not engage in other activities that are illegal (such as spam, piracy).

· Include a conspicuous disclaimer that any opinions are strictly the associate’s own.

∙ (9/5/2006) “Bragging” or “self-libel” provision. Do not post in a public space any material which could cause a reasonable person (especially a client or customer) to question your fitness for the job that you have, or your belief in your own fitness. This provision will be interpreted with normal common law concepts of defamation. The artistic value or “objective legality” of a passage, or its claimed literary use of irony or hyperbole, will not defend your posting or online conduct with such content.

 

Policy for Key Contributors

 

A key contributor is an associate (salaried or hourly, or a contractor, who could be paid partially through commissions) who makes decisions about other stakeholders or who speaks in public for the organization. The general policy for key contributors is simple. Key contributors should not blog or self-publish with respect to any subject without supervision. Instead of content censorship, supervision could include mechanisms to restrict access to a known list of users. (5/3/2005), or could allow anonymous self-publication (6/17/2005). Supervision may also consist of the associate-author’s agreement to freeze published content (hardcopy, Internet, or both) as of a particular date before beginning remunerated work. (1/16/2006)  Supervision could consist of agreeing to keep blog or personal website content confined to an work-unrelated topic, but this might be perceived as unwelcome censorship by the writer.(12/2006) Someone who becomes a key-contributor and who had acted as a key-contributor previously could be required to remove Internet content (including references through major search engines) or turn it over to a third-party for supervision; however such a person could not be required to remove (or attempt to have removed) "residuals" -- references (such as bibliographic references or hyperlinks) lawfully made to him or her (including third-party-reference search engine results and caches) in the past by others.

 

Here are some examples of jobs that would require an associate to make discretionary decisions about other stakeholders:

 

· A (normally salaried) manager (or executive) with direct reports and “hiring and firing” authority

· An underwriter who makes decisions about which customers may receive insurance

· Below the college level, a teacher who assigns grades to students and who has ample discretion in assigning grades (12/2005: (permanent) public school teacher off-duty speech follows the  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.) (4/26/2005: only a teacher who both instructs students and participates in evaluating students would fit this criterion.)

· Any executive making a decision about a public offering of a security

(9/24/2006) An important factor in finding that an associate is a “key person” will be whether that person’s identity is known to clients and external customers outside of the physical workspace.

 

Here are some examples of jobs that would require an associate to represent the organization (or a labor union) publicly.

 

· A formal public spokesperson

· A political lobbyist

· A sales person whose job requires him or her to leave company premises without supervision on sales calls, or to entertain clients

 

The take-down could not happen until the person had been paid at least once a fair market compensation for what he/she (that is, I) is doing on the new job.

 

Special Circumstances

 

Some jobs may create unusual circumstance that would require the employer to become involved in monitoring employee public expressions, on a case-by-case basis. These jobs could include

 

· Jobs in law enforcement, intelligence, or collections that require a public “low profile.” as well as most military servicemembers

· Jobs in “fraternal companies” (companies or divisions that serve a specific and limited class of customer that may be perceived as a special interest)

· Jobs that may require unavoidable or unpredictable intimate contact with customers or clients, especially if circumstances occur where clients cannot give informed consent to such contact

· Journalists (reporters who are expected to maintain public objectivity) and media editors

· (10/17/2006) Employment recruiters, if their duties have advanced beyond initial telephone or email fact finding (from clients and applicants) and clerical processing, into contributing to actual decision making about applicants. A similar rule could apply to literary agents, scriptreaders, and the like.

· (10/19/2006) Contractors who are sent to client locations to work, whose employers use contractor resumes to get business, and who are paid full salaries and benefits even when “on the bench.”

· Insurance agents or financial planners (5/13/2005)

 

(5/13/2005) The guidelines given on this page would refer to self-publishing activities on the Internet regardless of whether they are compensated by a third party or by advertisers. Some employers may, for various special conflict-of-interest reasons, have “no moonlighting” policies that prohibit outside employment or even income from deployment of intellectual or real property. This is a financial conflict of interest issue and is somewhat distinct from the “right of publicity” issues explored on this page. (12/2006) Some employers may choose to encourage limited-topic blogging, which they would want to supervise. But this falls under corporate blogging, not personal blogging. 

 

(10/9/2006) Short term jobs (less than thirty days) with “direct reports” or partisan public advocacy would not be considered in the “key contributor” category. For example, in a trivial sense, election judges are often identified in a partisan manner, but their participation is short term and the partisanship is inconsequential. These guidelines would probably not apply to religious employers (who are exempt from most common fair employment legislation – as noted in a thorough series in The New York Times on Oct. 2006 – and partisan political appointments, which obviously demand partisan public loyalty).

 

(1/2007) Cooperative publishing through another company would not violate this policy if the other company provides monitoring, oversight, and content limitation. Instead, the publishing would be viewed as a more “conflict of interest” business decision.

 

. (11/8/2006) A major factor in a "key contributor" finding is that an associate’s name or identity would be known to clients or external customers or external stakeholders outside of the immediate internal work environment and outside of a staffing company.  For example, telephone representatives in customer service in most organizations use only their first names in order to hide their identities, which fortifies the idea that the job is an individual contributor position. On the other hand, most teachers are known to parents so they are key contributors. Again, this concept related to the notion of "right of publicity" in intellectual property law. A W-2 temporary contractor(without temployee  benefits)  is not viewed as “publicly known” under this clause, but a CTC (corp-to-corp) contractor is viewed that way if paid a salary  while “on the bench” (but not during the period of initial hire if the intention is contract-to-hire). 

 

Anonymity and Search Engines (10/2005)

 

Many civil libertarians speak strongly in favor of protecting anonymous speech. Presumably, an anonymous or pseudonymous blog or domain would not raise the risks discussed in this article because it could not be picked up by search engines (in connection with the name of the speaker). A related concern would be that some personal names are much more common than others.  A site can have tags that exclude search engines and robots, so that they do not normally get found outside a known audience. Alternatively, a site could be made available only to a known subscription list or through a “virtual office” site that requires a known private membership. Of course, these sites would be less effective in many cases in promoting various political or social causes or ideas. In some cases, employers have discharged persons even for anonymous Internet activity that embarrasses the employer or discloses confidential information. Employers certainly can consider recommending various techniques to provide anonymity for key person employees who wish to speak off the job.

 

An employer may want to explicitly prohibit employee statements of self-incrimination in an unrestricted open forum (that is, a blog or other similar website accessible to the public through search engines, (05/2006) and particularly with fictitious settings, which are often more vulnerable to reader prejudice), even if the statement is made for hyperbolic effect in a political argument, if the employee (even an individual contributor) has duties that make his or her job unusually sensitive for clients. (See 9/05/2006 provision added above.)  (1/1/2007: None of this would apply to blogs or sites viewable only from whitelists, which are effectively more like restricted intranet sties anyway.)

 

Self-promotion and perceived workplace disturbance (11/2005; 3/2006; 11/2006)

 

Some organizations may want to regulate employee off-duty blogging or self-publication not based on content per se (which courts might not allow in some cases) or even activity, but on notions of the likelihood of workplace disruption (especially a problem perceived by schools), or that self-promotion in a public space (in conjunction with unusual controversy or “self-incrimination”) represents bad faith or a break in public trust. Organizations may be included to write policies that prohibit attempting to draw public attention or celebritize oneself without supervision outside of the workplace, and they might feel inclined to apply those policies to all associates; I would fear that this concept (which would be vague and hard to define) could lead to censorship content related to social conformity. Organizations may fear in some cases that employees could inadvertently compromise their ability to defend themselves against adverse actions by others and may compromise security or reputation of others inadvertently or indirectly.  Some organizations may try to regulate the ability of employees to earn any income outside of the job (to avoid perceived legal conflicts, as in financial services, or because of a training subsidy). Again, I believe that regulation of employee off-duty speech in a public space (the Internet) ought to be tied closely to the duties of the job, and that positions involving making decisions about others or involving publicly visible activity create many more ethical and legal questions than those of individual contributors. The focus of such a policy should be on the position in relation to the associate (having a publicly sensitive position) using free entry into a public space on his own in conflict with his duties.

 

(05/2006) Organizations may be inclined to view public-space speech as “workplace conversation” and may feel entitled to use it as an acceptable barometer for the associate’s continued employment. However, a well-articulated blogging policy would reduce the need to perceive personal blogs, weblogs and social networking site profiles this way.

 

This link on blogging incident examples provides more details about the blogging issue, including links to other sites that describe specific incidents that have occurred in numerous organizations.

Here is a related link about zoning issues, and another related link about insurance issues.

 

Visit my blogspot entry on these issues: http://billboushka.blogspot.com/2006/01/student-profiles-teacher-blogs-and.html; http://billboushka.blogspot.com/2006/09/when-it-rains-it-pours-more-on-social.html   or http://billboushka.blogspot.com

 

Book review of AMA’s “Blog Rules” by Nancy Flynn

 

©Copyright 2005 by Bill Boushka. All rights reserved, subject to normal fair use (please cite in a normal way in any bibliographic reference or link). Composed 2/22/2005 (slight changes – “public space” wording added 4/14/2005. Supervision provision added 5/3/2005; financial provisions added 5/13/2005.)  

 

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Key Contributor Employment Scenarios:

 

(1) Where my own intellectual property is involved. This could happen were I able to sell rights to one of my books, screenplays, a novel, software application or similar intellectual property. It would also happen if I were to become employed in solving one of the major Internet or speech public policy issues discussed at length on my sites. This would be the most desirable scenario personally. In that situation I would expect to have to modify the site(s) substantially to work with the investors or producers of whatever work was involved. I would work with them on a case by case basis. It is possible that the domain name would be transferred, and possibly trademarked.

 

(2)  Business opportunity involving discretionary decisions about other stakeholders. This is similar to (1) but probably would not involve any of my own intellectual property. An example could be operating a under franchise a literary agency or a technical recruiting business, where I have substantial authority to made decisions about individual applicants. In this case, all personal Internet activity would cease 30 days after earning $10000 or greater gross from the business, as interpreted by IRS rules (after subtracting certain kinds of "self-employment" expenses).  

 

(3)  Ordinary promotion. This would happen from taking a job and being promoted in an ordinary matter, with direct reports. It could also happen were I to become a permanent teacher (math) and have responsibility for assigning grades to students. Neither of these scenarios is immediately on the table (as of July 2006). In that case, all personal Internet activity would cease within 30 calendar days of the start day of work, and all sites would be removed by that time. No guarantee can be made about how long references to the sites would persist in search engines, caches or Internet archives, although legitimate attempts would be made to remove them from major engines.

 

(4) Contractor positions where contractors are paid full salary and benefits, even when "on the bench," that provide paid training, and where employer uses a public resume for the contractor to "get business." This does not apply to hourly W-2 employees.

 

(5) A major factor in a "key contributor" finding is that my name or identity would be known to clients or external customers or external stakeholders outside of the immediate internal work environment and outside of a staffing company.  For example, telephone representatives in customer service in most organizations use only their first names in order to hide their identities, which fortifies the idea that the job is an individual contributor position. On the other hand, most teachers are known to parents so they are key contributors. Again, this concept related to the notion of "right of publicity" in intellectual property law. As a "W-2" contractor, although known to the client as an individual, I would not be representing the hiring agency in the sense of this clause, but in Corp-to-corp ("CTC"), I would, if I were to also be paid a salary while on the bench. 

 

Note: Very short term (less than thirty days) assignments of this nature that are "key" in only a trivial sense are not considered to trigger this policy. For example, election judges are often partisan as a matter of law but only work for one day.

 

Individual Contributor Employment Scenarios:

 

(4)  Salaried, exempt position with fringe benefits that are used. In this case, all activity would cease within 180 calendar days of the start of work, but sites could be left up indefinitely. Some positions, although technically salaried, might be regarded as hourly if the duties were primarily of a maintenance or hourly nature (such as production support or telephone support).

 

(5) Hourly position, with or without benefits. This could include typical W-2 information technology contracts. It would also include most “interim” hourly jobs, as in retail stores/ In this case, there is no inherent conflict of interest and there are no restrictions (other than the usual requirements to respect workplace confidentiality, trade secrets, and information security procedures).

 

(6) Some positions may present issues of judgment. For example, if I worked for a recruiter and did mostly initial contact, fact finding and clerical duties, I would probably treat this as similar to item (4). In such a position, the likelihood is that it would not be permanent unless advancement into major decision making powers took place, probably after one year or so. However, in today's market there are some W-2 Human Resources jobs (placed by contracting companies) at clients with which involve making hiring and firing decisions about applicants for the client. These jobs are viewed as "key contributor." 

 

 

From my own ethical point of view, in the situation (4) above, there is no reason for me to curtail my publication activity. However, consulting firms that send out contractors might feel sensitive to contractor Internet activities that could interfere with the firm’s own effort to market the contractor in public spaces. I will work with firms like this on a case-by-case basis. Furthermore, in some situations that are “hourly” and involve minimal discretion (substitute teaching, for example) unusual sensitivities may occur with certain kinds of materials when they are found on the Internet by “clients.” (They already have in one case.)  Finally, it’s obvious that there would be issues if I were to find work helping law enforcement with special analysis, a possibility in my case, given the research I have done.

 

Intellectual Property Ownership:

 

In the scenarios discussed here, I retain all ownership rights to any writings, publications, music, film or video or other materials that I have developed. I retain the right to sell these to third parties through normal media agency mechanisms, and to derive income from these sources, subject to normal conflict of interest agreements with an employer or franchisee and applicable statutes.  (I may, however, no longer have the right to distribute them myself without third parties.  Some companies, such as life insurance companies, do not allow agents to have outside income for a time while becoming their agents, and such policies would be followed if I became their agents, but they make it much more problematic that I would be willing to enter such arrangements.)

 

Special content issues.

 

At the present time, the text of my published books is available for browsing online at my own site. I prefer this rather than authorizing other sites to search them, as I can respond to any special issues. 

 

I display the scripts and treatments for several short and feature films that I would want to make (if I could find $$$). I have other scripts that I do not display. Because of the sensitive nature of the scripts, some material that might be presented to agents is not included in what is shown online. Whether I continue keeping them available will depend on business circumstances as they unfold, as I have outlined above.

 

The point of all of the “encyclopedia” approach to information on this site is to help visitors “connect the dots” of issues affecting individual freedom and liberty, and to reinforce the idea that it cannot be taken for granted. Some persons feel disturbed by the way I use certain personal history information, but that helps add credibility to my research. Others feel perturbed by my visibility when I seem to have a lack of socialization and normal emotional, protective and competitive commitments that would give others more confidence in my accountability.  Yet social conventions have to be balanced against the value of the information itself. It is not acceptable to limit speech based on the social conditions around the speaker.

 

Political participation.

 

I have had these sites and books in circulation since 1997, and they are a very important part of my own social and political activism. If I became unable to operate the sites because of work conflicts, my silent participation through lobbying or advocacy organizations would be very limited or abbreviated, since often these organizations oversimplify their messages for their own constituents and cannot be objective.

 

Restoration.

 

Were my sites to be shut down to comply with an employment agreement or a "blogging policy," and if that shutdown were based on rules similar to those on this page, and if that employment then ended after a significant period of time, it is unlikely that I would return in a self-published manner. It is likely that a return would require third party investment from more conventional business sources. Were a shutdown to occur because of terms less favorable to me than those outlined here, return would occur on a case-by-case basis. It is probably necessary for me to keep substantial content available under this domain name at all or at least during most times to keep the name under renewal. 

 

July 7, 2006

 

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Blogger link to Confidentiality Policy (May 14, 2007)

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