Law in the Internet Society

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MattSavoffSecondEssay 3 - 06 Jan 2015 - Main.EbenMoglen
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The Merits Of Employers Monitoring Our Social Media

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  It is a misconception that employers believe their employees are on social media with the intent of harming the company. In many circumstances, including other examples provided by Nancy Flynn, the employee’s activity is unintentional and it may not have been caught had the company not seen it and resolved the matter promptly. I believe that the rise in social media usage presents a burden to companies because social media has created more outlets of risk which companies have to watch. Because of this, companies should monitor social media usage of employees for the sole purpose of protecting themselves. Employees are already protected by legislation so they cannot be disciplined for their social media usage unless it directly harms the company.
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Replace the words "social media" with "telephone." Are you now feeling charitable towards employers listening to employees' phone calls, just in case they should unintentionally injure the company? Replace "telephone" with "published writing." Are you in favor of employers monitoring the off-job publications of their employees in the same way? I think this draft is really an exercise in not thinking. It uses technological pseudo-complexity to conceal from itself the question it is skirting: how much power should employers have to retaliate against or control the off-job speech of their employees? In the US, where the savage system of employment at will is the norm, and the best method for controlling abuse of power by employers at will, collective bargaining, has become almost obsolete, the very idea that it might be absolutely none of the employer's business, in the most literal sense, what the employee does with her constitutionally-protected freedom of speech off the job seems almost quaint, which is why you think you don't have to ask it. Asking the question doesn't mean answering it simply or in one way. Naturally the contractual restriction of off-job speech will be important to employers, oddly enough most important in speech-related businesses. But once we are discussing contractual bargaining the employer will pay for what it wants, often not only with money but with security against dismissal. Restrictions on "social media" activity by unionized teachers, for example, may well be important to school districts, and there's no doubt of the legality of such provisions in their contracts. But they are bargained for, and the people so restricted are also protected by tenure in the unrestricted portions of their public speech.

So in the end, I really think you're expressing opinions about unions, and about employer power, that you may not know you have and don't know you're expressing. Such opinions are called "ideology," and they exist so that power can determine your thinking for you. The best way to improve this essay is to de-ideologize it, by figuring out from the ground up (that is, from power up, because power is always the ground) what you think, making sure that you are not smuggling the received wisdom's assumptions into your bag at your own expense.

 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Revision 3r3 - 06 Jan 2015 - 00:32:17 - EbenMoglen
Revision 2r2 - 05 Jan 2015 - 22:27:45 - MattSavoff
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