Sunday, 7 August 2011

On-line, oh so not private and busted

The Information Age with its electronic communications has opened the door to a new game of social interaction. There are new rules and new caveats. Anthony Weiner is in a s**tload of trouble because he made the mistake of tweeting "@name" which sends a public tweet instead of sending "d name" which sends a private (direct) message. Imagine that. Just because he typed the symbol "@" instead of the letter "d" his entire life has been dumped in the toilet.

Now you're sitting back chuckling away at this man's stupidity but how about I wipe that smirk off your face by pointing out that you could very well be next. "What!?!" you exclaim. "I don't tweet pictures of my private parts." Okay, maybe you didn't hit the Send button on a "Weiner photo" but there may be more of your private life floating around than you care to admit or even know about.

There's a common scenario of the office water cooler as a place to swap gossip, tell dirty jokes and in general say things for which we would never be held accountable because nothing is recorded. It is, after all, my word against yours. Nevertheless email with its ease of use and its ubiquity has become a misused means of communication. I say misused because people may be treating it the same way they treat the talk around the water cooler. Unfortunately, the big difference is that it is no longer your word against mine because the email is written down; yes, there's now a record of what's been said, er, written.

True story: Email monitoring
I am privy to this tale of intrigue which happened over a decade ago. The names have been changed because everybody was as guilty as hell.

Company B Chief Information Officer (CIO) emails Company A CIO informing him that Company A employee has sent Company B employee an unacceptable message. Company A CIO asks to see said email and discovers the unacceptable content is a joke about golf. Pretty innocuous stuff, no? Company A CIO asks how this was found out and Company B CIO explains that all email for Company B is being scanned for "key words" and the word which turned up was "s**t". Once again, pretty innocuous.

Company A CIO explains that this is insignificant and that Company A's policy is to leave people alone and treat them as adults. Company B CIO explains that Company B is up for acquisition by another company and Company B CIO was instructed to ensure everything was "squeaky clean". Company A CIO agrees to speak with Company A employee and subsequently tells him to either not write to Company B employee or only write business related messages or send any other golf jokes to a private email address, not a Company B email address. However Company A CIO categorically refuses to implement any such program of email scanning in Company A feeling it was just plain dumb. Never mind the invasion of privacy, it was playing Big Brother and treating everybody like they were a bunch of children.

Okay, that was over ten years ago. Company A still does not do any such email monitoring. However it must be recognised that the email of all employees is written in policy as being the property of the company. In other words, the company has the right at any time to examine the email of any employee. Is this good? Is this bad? Is the door open to some aspect of my personal life being exposed? I am sure my habits like many people at work is that the line between business and personal life is blurred. I exchange personal emails at work not as an abuse of business time but as a convenience. I exchange business emails at home not as an abuse of an employee but that like all modern workers, quick responses to a company staff which has to work afterhours and on weekends is good for everyone in executing their responsibilities.

Nevertheless, it is possible - not necessarily probable - that the company could request my email and discover my shopping list for Saturday afternoon's trip to the supermarket, or my neighbour's questions about Bobby's braces or a friend's latest dirty joke which is littered with George Carlin's Seven Words You Can't Say On Television. Yes, I could have a personal email address but frankly, over the years I have slowly slide to one email address for everything, both business and personal, as it is just a heck of a lot easier to run my life. This may be considered by the experts as bad but I'm imagining there are a lot of people just like me. - By the way, there is nothing stopping you from receiving a personal email, reading it then hitting DEL.

There have been a number of stories in the papers over the past few years of somebody posting pics or whatever on Facebook pretending to be single when they're married then getting busted. This is sort of like Anthony Weiner. There have also been stories of job applicants who in their personal lives have posted pictures of themselves, usually three sheets to the wind at a toga party indelicately dressed in a bed sheet while wearing a lampshade. Said pictures are uncovered by a potential employer who is doing an online background check on all candidates who then says "Sayonara" to the job applicant in question.

We may consider the above two situations as being just plain wrong however there are other instances where the distinction between wrong and okay may not be as well defined. People do post personal pictures on Facebook or Flickr for all the world to see; they write blogs in which they pour their hearts out for all the world to read and some go so far as to make Vlogs (video blogs) for all the world to see and hear. Unlike the water cooler where we can look around to see who's within earshot, do we understand how public electronic communications can be? Do we truly grasp the extent to which information on the Internet is public, really public, like the whole wide world public?

Monica Day
Ms. Day describes herself professionally as a copywriter, coach and consultant with more than 15 years experience in sales, marketing, training, strategic planning, and business development. On her web site MonicaDay.Com she advertises her services, describes her background and gives testimonials from her clients. All professionally done. You walk away with the impression that this is a woman who knows what she's doing.

Ms. Day has a second job though, a second interest which is promoted on the web site The Sensual Life. TheSensualLife.Com covers Ms. Day's work as a life coach involved in exploring the sensual side of life including sex. From the About page:

Monica Day is the founder of The Sensual Life. She specializes in creating safe spaces for people to explore, experience and express their sensuality.

Monica is best-known for finding playful ways to engage people into exploring what it means to live a more feeling, more passionate, more fully-expressed sensual life. She has spent the last 18 years as a writer, trainer and facilitator in areas ranging from personal growth and awareness, race and gender, class and power, sensuality and sexuality, communication skills, and relationship dynamics. She finds herself attracted to the edges of all experience — to the places where people are most likely to say “no” to going deeper with another…and working together to find “yes.”

Job offer rescinded
Ms. Day on her Facebook page describes getting a job offer and signing it. The employer then discovers her Facebook page which makes reference to both her careers. Based on the sexual content of the second web site, the employer withdraws the job offer. The curious part of the story, as described by Ms. Day, is that the employer was not a man but a woman. The recruiter involved in setting up the job offer warned Ms. Day that all of these on-line materials will have to "go away" if she wants to be considered employable.

You can't judge a book by its (Facebook) cover
Having gone through both of Ms. Day's web sites, I am confident in saying she seems like a competent professional and a nice person. Does she deserve to have the job offer rescinded? Does the employer have the right to rescind the offer? I am sure there are legal experts who can weigh in on this one and provide a definitive assessment of the state of affairs according to the current laws but no matter what the law says, we come back to the idea of human nature having an opinion, right or wrong, about something or someone.

While I may be okay with Monica Day's second career at The Sensual Life, the potential employer who made the job offer was not. If the employer was a Conservative promoting a religious image in a Conservative community focusing on family values with no mention of sex or sensuality, the hiring of Ms. Day would not just contradict the public face of the company but jeopardize its credibility within the community. Can we expect an entire community to subscribe to Ms. Day's perspective on life as a sensual journey of self-discovery? The women who work in my office here in North America don't wear burqas but if they were going to visit certain parts of the world, I would be inclined to recommend that they consider wearing one or some sort of garment which fits in with local customs. When in Rome and all that.

Does Monica have a case?
Many people commented on Facebook about Monica's story and the general consensus of opinion was that the employer was unfair to withdraw the job offer and Monica may have a legal case against the employer. However, there seems to be a growing trend for companies to make their own case about protecting their business interests against employees who may jeopardise that business.

Unsocial Use Of Social Media And Its Risks To Your Business
Borden Ladner Gervais is a Canadian law firm specialising in business law, commercial litigation and intellectual property rights. Recently Peter Eastwood, a partner in the Vancouver office wrote the article "Unsocial Use Of Social Media And Its Risks To Your Business" in which he discusses the problems facing companies with the growing popularity and use of Facebook and Twitter.

Traditionally it has been very difficult for employers to police off-duty conduct unless there is some reasonable connection with the employment relationship or it negatively affects the legitimate business interests of the employer. Mr. Eastwood gives as an example how a security company may not be able to trust a security guard if said guard was photographed looting a store. The author then points out that the security company's business reputation could be hurt if its customers worry about an employee being a looter. - The article starts off by mentioning the Stanley Cup riots in Vancouver where photos taken by the public led to the arrest of some looters.

The traditional unwillingness of the courts to regulate off-duty conduct is based in large part on the notion of individual privacy – that the employer’s reach should not extend outside the workplace into an employee’s private life.

But we are led back to individual cases where there is merit in the company's involvement in an individual's private life. Some examples from Mr. Eastwood:

An employee is suspended after his employer discovers his blog contained racist and offensive comments glorifying Nazi Germany.

An employee was terminated after making negative comments in her blog about her employer and co-workers. (This reminds me of the story of Heather Armstrong of Dooce.Com: see Wikipedia: Dooced)

An airline pilot was discharged as a result of Facebook postings containing racist, disrespectful and derogatory comments about the company's owners and customers.

It is interesting to return to my water cooler scenario above. We can look around to see who's within earshot. Anything we say is said then it's gone: it's my word against yours. But with email, Twitter and Facebook, what you say, er, write is there permanently for all the world to see. Yes, you have privacy settings but do you have all of them set correctly? "Click here to publish your personal information to everybody except your boss."

Companies have in place or are preparing policies governing the use of social media. You may think it's an intrusion into your personal life but there's an argument to be made that your behaviour as an employee could affect the business interests of your employer.

Other Examples
You look at a number of examples where an employer has terminated an employee because of his or her behaviour. If the example is "extreme" enough, it seems clear-cut that the termination is justified. The problem, however, is when you start moving through the spectrum of cases, from the one end, which is obviously bad, to the other end which is obviously good. The shades of gray are where one runs into difficulty discerning if the involvement of a company in the private life of its employee is legitimate.

Pamela Madsen
Pamela Madsen is the author of the book Shameless in which she writes about her personal journey of sexual self-discovery. Before the book, she wrote about her experiences in a blog under pseudonym The Riverdale Goddess. When her employer found out about the blog, they let Ms. Madsen go as they were worried about having to face a "sex scandal". (see my blog: Book Review: Shameless by Pamela Madsen)

Judy Buranich
This English teacher from Middleburg, Penn., is in hot water with her school board as the community has discovered the teacher is also the published author of several racy romance novels. The online news site The Daily Item wrote:

Deanna Stepp, mother of a district student, said: “We are not questioning Mrs. Buranich’s teaching credentials. We are not even questioning her ability as a writer ... . What we’re questioning is that the two jobs are not compatible with one another.”

Another parent, Wendy Apple, said she had Buranich as an English teacher in high school.

“I thought she was a top-of-the-line teacher,” Apple said.

But the erotica, she said, “is unethical, totally unacceptable. Period. It just sort of sickens and saddens me to know everybody’s sort of looking at this like, hey, this is OK.”

Ms. Buranich has been teaching for 25 years. Will this revelation lead to her dismissal? She writes under the pen name Judy Mays and her work is sold on such web sites as Amazon.Com and book chain stores such as Waldenbooks. (official web site: Judy Mays: More than a story... It's an erotic journey that'll leave you breathless...)

Lori Douglas
Ms. Douglas is, or was, an associate chief justice of Manitoba Court of Queen's Bench (family division) in the province of Manitoba, Canada. In August 2010 it came to light there were photographs of the judge in flagrante delicto posted on the Internet. This long, complicated story involves a husband, also a lawyer, who seems to have a fetish for "black and white", who posted the pics unbeknownst to his wife, who attempted to get a black man to sleep with his wife and who was subsequently sued by said black man. The wife, Ms. Douglas, has technically done nothing wrong other than pose for the photographs in the first place. Unfortunately, now that the judicial system has found out about the materials, they have temporarily assigned Ms. Douglas to work elsewhere, not as a sitting judge. There is the question of how Ms. Douglas can ever properly perform her job as a judge if the world has seen her photographed in the most scandalous of circumstances. The argument has been put forward that a representative of the judicial system must have an image of impartiality and wholesomeness and that being dressed up in a leather costume with strategic portions cut out while feigning oral sex on a dildo may not exemplify the impartiality and wholesomeness one was hoping for. (see my blog: Sex: Still Dirty After All These Years)

Tera Myers
Ms. Meyers, a teacher by trade, has now been fired twice after the school boards she was working for discovered she was once an X-rated movie star. (see Wikipedia: Tericka Dye) The St. Louis Dispatch has an interesting take on the story by pointing out that while famous people get away with the most egregious of offenses, Ms. Meyers not being a celebrity will be chased for the rest of her life for this indiscretion. In other words, she is not going to be allowed to turn her life around.

The lawyer Mr. Eastwood of the Canadian law firm Borden Ladner Gervais points out quite rightly that an employer cannot discriminate based on gender, sexual orientation or race, etc. The problem would be proving that to be the case. However if you write a blog glorifying Nazi Germany, you might just have a difficult time finding a judge sympathetic to your position.

Final Word
There's an old saying: "If you've done nothing wrong, you have nothing to worry about." The problem is that what's considered right by one person, may be considered wrong by the next person. Company A CIO thought a joke about golf using the word s**t was innocuous but Company B CIO wanted to take disciplinary action about it. Monica Day is a competent well-respected consultant and coach and yet her work in the field of life coaching with some sexual content led to her not being hired. Yes, you may be an outstanding citizen, paying your taxes and donating to charity but that doesn't mean your company or the next person agrees with everything you say or do.

When you're standing around the water cooler chewing the fat, you can say pretty much anything; nothing is being recorded. *I look around the room for a hidden microphone.* But in the world of electronic communication, anything can happen because everything is in essence recorded some place. Because of that, what fifty years ago may have never been under scrutiny by your employer may now be thanks to new technologies like email, Facebook, Twitter, blogs and YouTube videos. Does your employer have the right to monitor your afterhours personal activities? Good question. My advice is that when you loot a store during the next Stanley Cup riot, make sure you wear a balaclava that hides enough of your face so you're unrecognisable in any photos that invariably other good, upright citizens are going to take of you.


my blog: Anonymous on the Net: Not!
The recording of your computer's IP address means that you are not necessarily anonymous when surfing. Somewhere there's a record of your visit to www.GirlsGoneWild.Com.

my blog: ORM: Your online reputation is the history of your life
There may be more stuff about you floating around the Net than you know.

Twitter Help Center
What is a Direct Message? (DM)
A Message (previously called a Direct Message) is a private message sent via Twitter to one of your followers. (This is different than mentions and @replies.)

How to Send a Private Message From Your Phone:
* Begin your message with a letter "d" and the username of the follower your wish to message, like this: d olivia

Monica Day is a copywriter, coach and consultant with more than 15 years experience in sales, marketing, training, strategic planning, and business development.

The Sensual Life
The Sensual Life is nothing more…or less…than a reminder that life itself is a sensual journey. And that living a sensual, turned-on life includes feeling and experiencing everything as an expression of our sensuality, alive in the world… …food, art, music…dreaming, singing, waiting… …arguing, lovemaking, working…cleaning, crying, bathing… …writing, dancing, reading…playing, driving, running… …walking down the street, gardening, being quiet… The Sensual Life creates opportunities for you to express, experience and explore your sensuality more fully. For yourself. With your partner. With other women or men in your community. In writing. At events. Online. Or in the privacy of your own home.

Facebook: Monica Day

official web site: Borden Ladner Gervais
Borden Ladner Gervais LLP (BLG) is a leading, full-service, national law firm focusing on business law, commercial litigation and intellectual property solutions for our clients. With more than 750 lawyers, intellectual property agents and other professionals in six Canadian cities, clients turn to us for assistance for all their legal needs, from major litigation to financing and patent registration.

Borden Ladner Gervais - July 2011
Unsocial Use Of Social Media And Its Risks To Your Business by Peter Eastwood

my blog: The highs and lows of going viral
Here's the story and it's a good one. Alexandra Wallace, a student at UCLA, decided to video record herself going off on a bit of a rant against those who seemed to be bothering her while she was studying in the library. Unfortunately, her rant was specifically directed against Asians on campus who for whatever reason, struck Ms. Wallace as being 100% responsible for her annoyance. She claimed that the bunch of them were talking too loudly on their cell phones disrupting other people. Her diatribe turned out to be racist, condescending, and quite mean spirited.

It's one thing to say something to one or two friends in private over a drink; it's another thing to record it then post it on Youtube where it can possibly be viewed by the entire world.


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Anonymous said...

Hmmm...maybe I shouldn't feel so comforted by my pseudonym. Still, I don't write about sex...maybe I'm subconsciously worried someone (like my children?) will discover my true identity?

Unknown said...

yeah ... there's LOTS of stuff out there that i could do without the mainstream finding ... fortunately, i'm a chameleon and can only be identified through tattoos lol!

but also, a lot of the pre-sober life out there is also before things went apeshit here on the internet ... people are too lazy to scan pics now

so ... works for me.