From: <dfk2102@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sat, 13 May 2006 11:40:42 -0400

Being the Decider (Paper Two)

The Fourth Amendment is dead — at least as interpreted on a Katz
spatially-grounded “reasonable expectation of privacy” test —
because as we've noted, beyond physical privacy, what's truly
important has become controlling the flow of information streaming
constantly from all of us.  This transition overlaps another
evolution: society's move away from modern nine-to-five employment
where the individual blends into anonymity at the end of the
workday free to associate with whomever he chooses at his home, to
a postmodern workforce where an employee feels more flexible about
her working hours but also on-call all of the time, and uses the
web for social networking, maybe even writing her own blog. 
Earlier this term, Matt Norwood wrote about “Kathy's World,”
expressing concern that the blogging of an indiscreet friend could
have employment implications twenty years down the road.  This
paper explores the potential impact of our loss of privacy in the
employment context, and argues that as individuals we must
understand that the web is a largely public space and take measures
to control the presentation of our identity; but, further, that the
blurring of the line between our public/private selves and
work/personal time creates the need for broader personal protection
of workers in the private sector and proposes Congressional
legislation as a remedy.

As users gain more experience with blogging and really the
implications of the internet as a public network, I imagine that
they will naturally become more concerned and savvy about the sort
of information they share about their real-world identities.  And
Eben seems right to suggest that people are apt to develop multiple
“identities” on the web for different fora, keeping their
church-going self distinct from the guy who enjoys online gambling
on the weekends.  However, the fact remains that many users are
ignorant about the technological dimension of the ability to
preserve anonymity on the web.  To give a brief example, last
January the New York Times ran an article recounting the revelation
of the real-world identity of the author of “Underneath Their
Robes,” a humorous blog on the federal judiciary.[1]  The author,
David Lat, had become tired of concealing his true identity, wanted
to bask in the real-world glow of the fame his blog had generated,
and assumed that his employer (the U.S. Attorneys Office in Newark)
wouldn't care about his blogging habit.  Yet while Lat was not
terminated, “it was subtly suggested that if any opportunities
arose through the blogging, he might be want to look into it.”  In
this situation, we have an author who had chosen to reveal his
identity ultimately picked up as an editor for the Wonkette
blogsite, but it is very easy to imagine a much darker scenario—in
fact, the article notes that since Lat occasionally answered his
emails from his office computer, Judge Kozinski among others, had
already determined his true identity pre-disclosure—what if one of
those folks had been a less-forgiving private sector employer?

As an at-will employment country, the public record is rife with
strange cases like the Miller beer employee fired for drinking Bud
Light,[2] but the network effect of the internet would seem to
inevitably lead to far greater invasiveness in employee's personal
lives.  Imagine being called into your boss's office to hear her
express her dismay at the photos of you recently posted on flickr,
or worse, disapproval with the political content of your blog—in
most cases nothing is stopping a private sector employer from
firing you (though some states, like California, have statutes
protecting areas like political speech and unionization from
employer regulation).  So individuals will need to be more vigilant
in protecting their anonymity in the blogosphere and on the web in
general.  Along this vein, the EFF has a helpful article posted
about simple technological measures bloggers can utilize to
preserve their anonymity.[3]  The EFF recommends six measures for
protecting anonymity: 1) Use a pseudonym and don't reveal personal
details on your blog; 2) Use a service that offers anonymous blog
hosting and use Tor to edit your blog; 3) Use ping servers to
broadcast your blog at relevant search engines; 4) If you blog
mainly to friends and family, use password-protection; 5) Use a
robots text file to tell search engines to ignore your domain to
avoid being Googleable; and 6) If you have your own domain name,
register it anonymously.  Bloggers taking these precautions should
be able to prevent employer's from interfering in their private
lives.

However, while individuals ought to take the above measures to
protect the anonymity of their own contributions to the
blogosphere, nothing protects even the most vigilant from the
indiscreet postings of an acquaintance.  That's why I think that we
also need federal legislation which provides workers with a broad
right of association and privacy, and precludes employer
interference with employee conduct off the job unless they can show
that regulation is “consistent with business necessity” (drawing
language from the CRA of 1991).  This legislation would subject
private employers to employment  constraints similar to those
already borne by government employers—I'm envisioning a kind of
“worker liberty” bill focused on extending employee's right of
association and ability to engage in (political) speech.  The
proposed bill would encourage the political participation vital to
democracy, while allowing employers to regulate if their business
model depends upon it.  While this type of legislation is unlikely
to find a sponsor in the current Administration, I
think—particularly with privacy concerns at the forefront of public
consciousness in the wake of the NSA data collection scandal—that
this issue could resonate with voters in the next election.

1) Jonathan Miller, He Fought the Law. They Both Won., N.Y. Times,
Jan. 22, 2006 (available at
http://www.nytimes.com/2006/01/22/technology/22njCOVER.html?ex=1295586000&en=ff49fd3507b48a34&ei=5088&partner=rssnyt&emc=rss).

See also Kevin Poulsen, Secret Bloggers Bare All, Wired News, May 4,
2006 (available at
http://www.wired.com/news/technology/0,70814-0.html?tw=wn index 12).

2) Miller Beer Employee Fired For Drinking Bud Light, NBC5.com, Feb.
14, 2005 (available at
http://www.nbc5.com/news/4191531/detail.html??z=dp&dpswid=1260382&dppid=65172).

See also Suzanne Presto, The Cola Wars Get Personal, CNNMoney, June
16, 2003 (available at
http://money.cnn.com/2003/06/13/news/funny/coke pepsi/).  Here, a
Coke driver was fired for drinking Pepsi; it seems that he was
reinstated with the help of his union (see
http://www.teamster.org/03news/nr 030718 1.htm).

3) How to Blog Safely (About Work or Anything Else), updated May 31,
2005 (available at
http://www.eff.org/Privacy/Anonymity/blog-anonymously.php).

See also Stacey M. Leyton , Bloggers' FAQ: Labor Law, last visited
May 13, 2006 (available at
http://www.eff.org/bloggers/lg/faq-labor.php); Ethan Zuckerman, A
Technical Guide to Anonymous Blogging – A Very Early Draft, Apr.
13, 2005 (available at http://www.globalvoicesonline.org/?p=125).



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