Nancy Flynn. Blog Rules: A Business Guide to Managing Policy, Public Relations, and Legal Issues. New York: Amacom/American Management Association, 2006. ISBN 978-0-8144-7355-9. Paper, 226 pgs. Also sold by the Society for Human Resource Management at this link.
Finally, we have a well written handbook that discusses with some candor both the benefits and risks to businesses from blogging, mainly within the workplace, but also when done personally from employees at home. The author calls the issues raised by blogging unprecedented, and they are. In a few places, her tone is alarmist, but as a whole it is balanced. Blogging can, in many industries, be an effective (if irascible) tool to strengthen a corporate brand. The whole business of public relations is turned inside out by this new process.
Many of the legal issues, such as protecting copyright, trademark, trade secrets, and customer and employee confidentiality are well known, and have always existed. The compliance issues associated with laws like Sarbannes-Oxley (SOX) and the Health Insurance Portability and Accountability Act (HIPAA) have come about more recently, as have various strict SEC rules for how publicly traded companies release information to investors, much of this because of accounting scandals but also because of increasing concerns for stakeholder security. Of course, if it is illegal to disclose a trade secret in a hardcopy letter, it is illegal on a blog. It is the incredible efficiency of blogs that present the new problems in practice.
This problem lends itself to functional decomposition. What distinguishes blogs and makes them a “problem”? There are several components for the concerns.
(1) Blogs normally live in a public space, easily accessible with anyone on the planet with an Internet connection, and often easily indexed by robots and search engines (most notably Google). The viewer could be a rival company, or a terrorist 8000 miles away.
(2) A hardcopy book or magazine is also in the public space, but in practice it takes a typical visitor much more time and cost to find the item of possibly compromising information.
(3) An email (or posting on a closed corporate Intranet or virtual office network) with illegal information is not in the public space, and probably will not reach widely beyond a specific community of visitors, although in business this also typically present issues, which are normally covered by more conventional employee computer and information usage policies.
(4) A blog is a specific format, where entries are made and presented in reverse chronological order, usually with publishing software that makes the technical part of publishing easy for the novice. However, the legal issues presented in this book would apply to any website (corporate or personal), whether an independent domain or a subdomain (such as on AOL’s Personal Publisher), or, particularly, a profile on a social networking site (if open to the public). Likewise all of the legal concerns for corporate and business blogs would have applied to corporate websites in general. Many companies have long published non-financial information for potential customers in a public space, as well as their financial information. Her book makes the point that companies must be diligent in determining their web presence, but in fact some presence would help them defend trademark claims (as some companies that were slow to use the web in the 1990s found out).
Her book is in six sections, and the early portions deal with legal requirements in some detail. She does dismiss many common misconceptions. She advises companies to keep detailed business records of their corporate blogs (this applies even to small businesses), as with e-mail. I do recall around 2001 (before Enron’s public collapse) that companies were encouraging the deletion of emails as soon as possible so they could no longer be subpoenaed. Apparently, with the new SEC rules especially, this is no longer acceptable. The record keeping requirements can be complicated by the existence and persistence of search engine caches and Internet archives, as well as the simple capacity for visitors to save content privately.
As for record keeping, it is important to note that blog publishing software and in general website maintenance software (Microsoft Front Page) allow the author to edit and change text at will without an audit trail of what was changed. More sophisticated content management and change control systems maintain these audit logs (at various levels of test, quality assurance, and promotion). These systems are similar to those for programming language source code in business financial systems (Endeavor, Librarian, Changeman, Harvest), and indeed financial institutions and various other businesses must meet certain legal and security requirements (load module v. source integrity) in how they deploy source management. These are nearly always required in financial businesses, but I am not aware of any requirement to keep them in personal weblogs or in privately held businesses (although there are always some kind of formal record keeping requirements for the IRS, private placement investors, and other common business needs).
Gradually, she migrates to the testy issue of personal blogging. She ratifies the idea that employers need to publish blogging policies, although some states have laws that apparently could hinder rules having to do with personal blogging. She gives several detailed examples, and they are worded, carefully, to prohibit disclosure of confidential information or trade secrets, defamation, copyright infringement, information that endangers security, or personal harassment of any stakeholder, including, of course, sexual harassment or raising of hostile workplace concerns, as well as pornography. The policies would have to apply both to permanent employees and to temporary contractors (who are often employees of personnel staffing companies). These policies need to apply to personal weblogs, when they reach the Public Space, as well as communications done on corporate systems. She insists that employees use their real names and not use pseudonyms or speak anonymously. (Would this imply that employees may not take out domain names not based on their real names, in order to avoid deceptive self-representation?) Even on personal websites and weblogs, employees must include conspicuous disclaimers stating that the views expressed have nothing to do with their employment.
Employees have been fired (or "dooced" -- and these incidents also include many pressured off-the-table resignations) for what they say on personal weblogs, and she gives a number of examples, which now mount into the hundreds around the country. The most common offense is blatant criticism of the company or of other stakeholders. Other offenses have included photographs of company property or dress in corporate uniforms. Less frequently, bloggers have been sued, since a public weblog is (in theory) subject to the same intellectual property law (copyright, trademark, libel, invasion of property, right of publicity, maybe even unfair competition) as any other media. The main risk here might be confrontation by the blogger with a particularly litigious celebrity, company or organization, along with the reality that many bloggers (unlike whole media companies and television networks) do not have personal deep pockets to defend themselves against frivolous suits (such as SLAPP) which, fortunately, is still rather rare. In a situation where many people know that a particular person works for a particular employer and has unusual access to some body of sensitive information (as about a fraternal or suspect class of consumers), there could occur situations were ordinarily innocuous material indirectly suggests a breach of confidentiality.
A more subtle problem occurs with the fact that many employers have been pre-screening job applicants with Google searches or profiles on social networking sites. I have many concerns about this practice, as I have documented elsewhere on this site. For one thing, they could screen the wrong person. More important is the risk that such screening could become a litmus test for social conformity or for the ability to fit into a business hierarchy. Common sense tells us that this ought to depend on the kind of job an applicant would have. Employers use multiple-choice personality tests and exclude applicants with these, so using voluntary Internet content might seem fair game (after all, it is in a public space). To me, this makes more sense for some jobs, especially those with high public visibility or involving aggressive sales skills, than for individual contributor jobs.
The most ethical practice would be for employers to publish their blogging policies with their job applications (especially on line) and make a sincere attempt to tailor the policies to specific job duties. This could be tricky to do, though, given the laws in some states.
Elsewhere on this site, I have suggested that employer blogging policies should discourage employees with certain publicly sensitive duties from unsupervised personal blogging or web posting at all. Such a policy would not be intrusive (employers would not regularly “check”) but could discipline or terminate employees (at will) who caused complaints or confusion. Why? I think that if one speaks in a public space about sensitive matters, one wants to be candid, and not face censorship. In some situations, it would be difficult to discuss these things with enough candor without involving the employer. So with certain kinds of jobs, one accepts a “low profile,” or the reality that the employer will be allowed to manage the associate’s presence in any public space. There are consulting firms coming into being to do just this.
The complexity of some issues does present an ethical and moral conundrum. Many people, for example, with respect to certain issues (like GLBT issues), do not feel free to speak on their own and have to let organizations do this for them. We all know that lobbying organizations tend to simplify the issues to benefit their constituencies, and this does not add to the complete understanding of the complexity of the issue. This is well known especially in the military, with the issue of homosexuals in the military, which is the issue that drew me into “public life” and debate starting around 1992. (Under “don’t ask don’t tell” military personnel have been discharged for “admitting” homosexuality in personal online profiles and blogs.) But this subsumes an even bigger question. Many people post some of their personal experiences on the web in order to argue their political points. I do that. Personal experience can add much depth and originality to an argument, by encouraging inductive reasoning. But in many cases this can be “dangerous,” and cause risks or distractions in the workplace, or sometimes in the family. When should “the opinions of others” (to go back to an Ayn Rand peeve in The Fountainhead) interfere with objectivity and a fair political process or result? Some of the answer has to do with the commitments one voluntarily makes in life, as in a career, as I noted above. Sometimes it seems imposed in an unreasonable way. Statements in a public space, while objectively legitimate, can cause visitors to draw unjustified conclusions about an individual and others associated with the individual. Even something innocent can cause problems. For example, if I list Edge of 17 as a favorite movie, that could imply an unhealthful interest in minors, even though the film itself is well done (and presents a very likeable “gay role model” protagonist). I can also point out an aside from my own domain. From examining the Urchin stats on my domain and looking at the search arguments, I can tell how visitors react to the content and how they are likely to feel when they find it, regardless of its objective merit. I review a lot of movies, and I can tell that many visitors are “interested” in body image issues as they apply to both male and female actors, compared to themselves. I have no pornography, but I can tell that I have material that does tweak some psychic nerve endings. It is a good thing that I have “retired” and I hope that I can be sufficiently choosy about my second career.
Weblogs confront us with a social reality and "perfect storm." That is, a set of innocent facts or observations can be compiled and manipulated to put oneself and others associated with oneself (especially at work) in an unfavorable public light. The fact that one would present some body of controversial but objectively legitimate material in a public space can affect how others perceive the writer (relative to competitive position and the fulfillment of social obligations) and others associated with the writer. (The associated intellectual property law concept is called "false light"). There is a dichotomy with "free entry" publishing that involves viewing the material both as literature and as personal conversation in public. Yet, the satisfaction of "fighting back" and, as one person, challenging prejudicial and corrupt social systems and "appearance values" and associated familial and institutional practices drives a lot of blogging. Many people believe that individuals should not asset themselves in a public place on their own until they prove that they can function in gender or familial roles and in a competitive business hierarchy--yet it is that belief, however not legally driven, that drives a lot of blogging. The world is indeed non-Euclidean. Bloggers will find that the whole is often more than the sum of its parts.
Tom Drugan: Not Just Your Space -- A College Student's Guide to Managing Online Reputation (e-book, 17 pages, available at this link in PDF format), 2006, published by Naymz.com, Chicago. This is a thorough examination of the issues posed for most people in practical job markets (or other markets like social and political) by their presence on the web, particularly with search engines. "Clean your Space" and "Wash Your Face." He does give detailed technical instructions in how to follow references to oneself on-line, especially with mistaken identities and synonyms. He even recommends keeping track with RSS xml feeds. There is a conceptual issue about what "reputation" means, and how subjective it is, and how it is a changing value. The practical reality is that in our culture there is a divide or schism as to when "truth" is importance or when appearances are to manipulated. Celebrities, of course, pay public relations companies big bucks to mold their images, and now companies are appearing that purport to allow ordinary individuals to do the same. True, much of the problem seems to be an obsession with some employers in catching certain kinds of indiscretions, like photos of underage drinking. But it has to be bigger than that. Google any person's name (of someone like me "Bill Boushka" who has been active on the Web for a number of years) and you do get an impression of the person's values (even through mostly bibliographic, rather than personal, references). They may be OK morally, but you wouldn't want someone like me to be hired to "protect your family" -- because I don't see social relationships that way. There is a question about how much "invasive" information is legally defamatory (libelous or invading privacy) in the traditional meaning of the law. Furthermore, older issues, well known in book publishing law, deal with the possibility that a person can be defamed if recognized without his or her name actually being given. The author's self-photo on the last page is interesting and perhaps ironic. My blog entry on this issue is here. The other company recently publicized in this business is ReputationDefender.com
It's important to note the different kinds of objection that can exist about content posted by a third party about a person or entity. Libel and invasion of privacy, and copyright infringement (to name a few problems) are legal concepts that can be backed up by litigation (or even prosecution). There have always been ways to have such content removed. A posting because one person does not like being perceived as "associated" with another entity because that entity referred that person does not sound like a legitimate cause for action. More troublesome is the idea that correct and generally legitimate information can become irrelevant with the passage of time and cause the person to be perceived poorly. The best discussion of this problem that I know of occurs in Goldfard/Ross "The Writer's Lawyer", Times Books, 1989, p. 133 in the chapter on invasion of privacy.
Andrew Keen; The Cult of the Amateur, How Today’s Internet Is Killing Our Culture
2007 Community / Doubleday, ISBN 978-0-385-52080-5, 228 pages, hardcover, indexed
Blogger entry here. The democratizing of speech and then media certainly can bust up older notions of social and familial hierarchy and unearned privilege, but, as he writes (p 15)
"....democratization, despite its lofty idealization, is undermining truth, souring civic discourse, and belittling expertise, experience and talent."
Is this just turf protection, or is it a question of real professionalism and an appropriate balance between self-expression and fitting in to family and community? At the end, on p 204, he writes,
"Instead of developing technology, I believe that our real moral responsibility is to protect mainstream media against the cult of the amateur."
He goes on right there to state his fear that the well-paid (and unionized) media will be dismantled and destroyed. Not too many pages before the end, he characterizes our largest search engine company as a "parasite." In retrospect, the tone seems authoritarian, if properly concerned. Still, his theories do have a moral implication: how legitimate is it to craft and publicize one's own views of the world before taking on the interpersonal challenges to competing to take care of a family? It's a life-defining question.
Audacia Ray. Naked on the Internet: Hookups, Downloads and Cashing In on Internet Sexploitation. San Francisco: Seal, 2007. ISBN 1-58005-209-6, 321 pages, paper with URLs, glossary, and notes. Website is http://www.wakingvixen.com/ This book surveys the way women use the Internet and how the Internet has affected women's lives, especially in social and intimate areas. The early part of the book gives a lot of interesting history of the Internet and shows people were using it earlier than most of us realize (back in the 80s), but as the book progresses it gives increasing attention to the way it affects the way women seek out sexual partners and the way the sex industry seeks out customers. She also discusses sexual health websites, and mentions at least one of the COPA plaintiffs. In quoting one of the operators of a fetish website, she writes
"The more society tries to censor and limit our freedom of speech, the more it makes me do whatever I want to do." (p 159).
The range of explicit activities is quite large. Some women started making continuous webcams of their lives in the mid 1990s (Chapter 3 is called "A Day in the Life of My Vagina: The Politics of Sex Blogging"). The issue of anonymity comes up, and it seems that a lot of time women are not able to remain as anonymous (even from work) as they had thought. She talks a lot about the business models in the sex industry, including the way "clients" are screened and even black-listed ("bad date lists") (as for not being "safe") by certain industry websites. It does seem that johns run the risk that supposedly confidential personal information that they must give call services can leak out and be discovered by their bosses or maybe even district attorneys. (Look at what happened to conservative Republican Senator David Vitter, on the call list of the D.C. Madam.) She also talks about the sex toy business ("teledidonics" or "cyberdidonics").
There is a more general discussion on blogger, here.
Daniel J. Solove. The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. 248 pages, hardcover. New Haven and London: Yale University Press, 2007. ISBN 978-0-300-12498-9. Introduction and 8 Chapters.
Dr. Solove is an associate professor of law at George Washington University. One sentence in the Introduction, on p. 4, may summarize his point. "Information that was once scattered, forgettable and localized is becoming permanent and searchable." Actually, in comparison to some other recent treatises on the exploding issue of Internet reputation, this law professor's tone and recommendations are calm and sensible.
He does discuss the concept of public shaming (from pre-print times), as to how the concept has changed as people became more mobile (Hawthorne's famous novel The Scarlet Letter is viewed as a paradigm that needs to be updated), and how easily shaming on the Internet can become permanent but unjustified according to normal standards of common sense.
Technology has transformed the topology of communication, and given people "tools" whose ramifications that don't fully understand, and the accountability of which they probably aren't prepared to accept. The law has obviously not caught up with all this. Solove does advocate a middle ground, moderate (maybe even "Clintonian") approach. Damage to reputation is subtle, practically permanent, and can ambush someone. Takedown procedures similar to those for copyright infringement should be designed, and mediation or informal procedures with ISPs (or by contacting the bloggers / speakers, possibly with the help of intermediary companies like Reputation Defender) should be tried before formal lawsuits are filed. Third party liability (for ISPs and for blogger hosts) should be strictly limited. However, what he calls our "binary notion of privacy" should be modified to give more expectation of "pseudo-privacy" in public places. He starts his book with an example in South Korea where a picture of dog pooh with the owner on a train winds up on the Internet, forever. That sort of thing shouldn't happen, because it is not of real public importance.
He does take up the problems that can occur when people talk about their own lives in public (in blogs, websites, and social networking profiles), and he acknowledges that these can inadvertently affect others, but he believes that the legal system should provide a lot of cover for the speaker if there is any public importance in the events of the person's life at all. He does cite some important cases with this problem.
He considers the recent flap over Facebook's mining of information for advertisers (and Facebook's voluntary reversal) a good example of the problems we face.
He makes a good point about the practice of employers googling applicants and employees, and suggests that employers ought to be expected (or even required) to follow the same care that they must follow when pulling credit reports or getting FICO scores.
There is more blogger discussion here.
Daniel J. Solove. Understanding Privacy. Cambridge: Harvard University Press, 2008. ISBN 0-674-02772-8, 258 pages, hardcover. Dr. Solove maintains that no one understands the concept of privacy, and we have always mistakenly tried to characterize it with a "common denominator" approach. Instead, Solove proposes that we use a concept by philosopher Louis Wittgenstein and build a model based on sets of similarities. Solove goes deeper, getting into the history of our concept of individualism and personal sovereignty as a concept enabled by technology. Earlier societies were much more "socialized" because they had to be, and tended to regard privacy as antithetical to the common good. Blogger discussion.
Larry Magid and Anne Collier. MySpace Unraveled: A Parent's Guide to Teen Social Networking. Berkeley: Peachpit Press, 2007. ISBN 0-321-48018-X. 184 pages, paper, indexed. The authors also run BlogSafety.com (forums link) which the authors say they are converting to Connect Safely. This book reads like a practical handbook, and has many illustrations that reproduce the actual steps in working with Myspace.com, to walk through parents what they need to know to supervise their kids. They talk about some of the arcane points, such as how Myspace mail works. The safety issues are taken up in the later part of the book. The authors point out that instances of much older men predating on young girls (or boys) on social networking sites are relatively rare, and that most instances of harassment (including cyberbullying) are likely to come from other kids. (Nevertheless, the reports from other news media, especially NBC Dateline, on the vulnerability of kids are quite disturbing.) The authors take up more advanced tips, such as the dangers of "hotlinking" to images on others' sites (this has been done with photos on this site, and I do not give permission for it; I do encourage normal links). They also give practical discussions (without a lot of philosophy) about the concerns of employers and current and future schools and colleges. The represent Myspace as reasonably proactive in prohibiting inappropriate content (including nudity) and as having recently (as of 2006) increased privacy options for those over 16 as well as under 16. In some ways, the authors say, the open Net may be more dangerous for kids than a reasonably well supervised Myspace account. They give a very brief and general discussion of the failure of COPA (Child Online Protection Act).
The Blog Safety forums have a disturbing story from the May 21, 2008 Chicago Tribune about a 17 year old teen in La Crosse WI arrested on child pornography charges for posting a nude photo of his 16 year old girl friend on Myspace, link here.