1 00:00:00,040 --> 00:00:03,480 Speaker 1: Google is being sued over claims the company is illegally 2 00:00:03,600 --> 00:00:08,560 Speaker 1: muzzling its workers with its sweeping confidentiality policies. An anonymous 3 00:00:08,560 --> 00:00:13,680 Speaker 1: Google product manager alleges that Google's employee confidentiality agreement makes 4 00:00:13,720 --> 00:00:16,720 Speaker 1: it a firing offense for employees to whistle blow to 5 00:00:16,840 --> 00:00:21,160 Speaker 1: regulators or to disclose salaries, work skills, or experience to 6 00:00:21,320 --> 00:00:26,000 Speaker 1: future employers. Google denies the claims. My guests are Rebecca Trishne, 7 00:00:26,160 --> 00:00:30,520 Speaker 1: Professor at Georgetown University Law School, and Andrea Mtwitchen, Professor 8 00:00:30,840 --> 00:00:34,879 Speaker 1: at Northeastern University Law School. Rebecca, let's start with the 9 00:00:34,920 --> 00:00:40,680 Speaker 1: allegations that Google's policies prevent employees from communicating directly with 10 00:00:40,800 --> 00:00:45,760 Speaker 1: regulators such as the SEC about potential legal violations. Does 11 00:00:45,800 --> 00:00:50,919 Speaker 1: that fly in the face of federal whistleblower laws? Well, uh, 12 00:00:50,960 --> 00:00:57,000 Speaker 1: there's there's actually, um, not a huge amount of federal 13 00:00:57,080 --> 00:01:01,120 Speaker 1: law about this. Actually, what the what the complaint is 14 00:01:01,160 --> 00:01:05,119 Speaker 1: saying is that, uh, the way that Google frames its 15 00:01:05,120 --> 00:01:10,000 Speaker 1: policies UM violates federal policy, which is then a violation 16 00:01:10,200 --> 00:01:15,440 Speaker 1: of California law. UM. And so, based on the allegations 17 00:01:15,480 --> 00:01:18,760 Speaker 1: of the complaint, what they're saying is that Google tells 18 00:01:19,280 --> 00:01:22,760 Speaker 1: its employees that it can't blow the whistle in lots 19 00:01:22,760 --> 00:01:27,399 Speaker 1: of circumstances where by by law, Google shouldn't be stopping 20 00:01:27,400 --> 00:01:31,959 Speaker 1: them from blowing the whistle. And Andrea, the suit was 21 00:01:32,000 --> 00:01:36,559 Speaker 1: brought under California's Private Attorneys General Act, which basically allows 22 00:01:36,600 --> 00:01:40,240 Speaker 1: employees to enforce the state labor Code. Tell us more 23 00:01:40,240 --> 00:01:44,280 Speaker 1: about how that law works. As the specifics of the 24 00:01:44,280 --> 00:01:48,680 Speaker 1: California law. Unfortunately, I'm not particularly familiar with that, but 25 00:01:48,760 --> 00:01:51,120 Speaker 1: what I can tell you is the broader set of 26 00:01:51,200 --> 00:01:56,680 Speaker 1: dynamics around the delicate balance between private sector contracts and 27 00:01:56,760 --> 00:02:00,320 Speaker 1: the way that state law generally works in these circumstances. So, 28 00:02:01,440 --> 00:02:04,800 Speaker 1: in general, when a company gets started and they bring 29 00:02:04,800 --> 00:02:08,680 Speaker 1: in employees, it's obviously in their interest to have a 30 00:02:08,720 --> 00:02:14,320 Speaker 1: relatively aggressive set of confidentiality obligations. Indeed, their information security 31 00:02:14,400 --> 00:02:18,919 Speaker 1: duties would require them to have relatively aggressive confidentiality obligations, 32 00:02:18,960 --> 00:02:21,440 Speaker 1: and we want that. We want companies to be able 33 00:02:21,440 --> 00:02:24,760 Speaker 1: to defend their intellectual property. Now that said, we have 34 00:02:25,080 --> 00:02:31,840 Speaker 1: a countervening policy in each state's contract law about excessive 35 00:02:31,919 --> 00:02:38,560 Speaker 1: restrictions on mobility and on overreach in contract relating to 36 00:02:38,960 --> 00:02:43,440 Speaker 1: confidentiality and restrictions on work in employment. So the way 37 00:02:43,480 --> 00:02:46,320 Speaker 1: that the California Board is going to decide this claim 38 00:02:46,360 --> 00:02:50,640 Speaker 1: will partially be through this traditional contract law analysis, looking 39 00:02:50,720 --> 00:02:53,959 Speaker 1: at whether the scope of the restrictions on the employee's 40 00:02:53,960 --> 00:03:00,600 Speaker 1: speech represents overreach in light of California's case law and 41 00:03:00,720 --> 00:03:06,240 Speaker 1: statutory interpretations about the correct balance between the in lattual 42 00:03:06,320 --> 00:03:10,200 Speaker 1: property and privacy interests of companies versus the right to 43 00:03:10,320 --> 00:03:13,680 Speaker 1: work and the right to speak of employees as a 44 00:03:13,760 --> 00:03:17,280 Speaker 1: matter of public policy, and in fact, in contract laws 45 00:03:17,320 --> 00:03:21,840 Speaker 1: there are areas where we say that public policy acts 46 00:03:21,919 --> 00:03:25,800 Speaker 1: as a counter veiling interest that supersedes the rights of 47 00:03:25,880 --> 00:03:30,520 Speaker 1: private parties to engage in a bilateral agreement restricting speech. 48 00:03:30,760 --> 00:03:33,760 Speaker 1: But in general, the contract law default is that we 49 00:03:33,800 --> 00:03:36,840 Speaker 1: do have the right to agree to restrain ourselves from 50 00:03:36,880 --> 00:03:41,440 Speaker 1: speaking about particular matters. So that's the balances at stakes, Rebecca, 51 00:03:41,600 --> 00:03:46,040 Speaker 1: It's understandable that Google wants to protect proprietary business information. 52 00:03:46,480 --> 00:03:50,520 Speaker 1: According to the complaint, though the policies hamstring employees from 53 00:03:50,520 --> 00:03:53,640 Speaker 1: getting a new job by prohibiting them from telling a 54 00:03:53,680 --> 00:03:57,200 Speaker 1: potential employer how much money they make or what kind 55 00:03:57,240 --> 00:04:02,240 Speaker 1: of work they performed. Does that seem like a violations? Uh? So, 56 00:04:02,560 --> 00:04:09,160 Speaker 1: in in general. Yes, Um so, as Andrew said, there, uh, 57 00:04:09,200 --> 00:04:11,600 Speaker 1: you know, there are some things where you don't want 58 00:04:11,800 --> 00:04:16,040 Speaker 1: someone leaving to take away company specific secrets. But at 59 00:04:16,080 --> 00:04:20,320 Speaker 1: the same time, uh, it's actually uh the case that 60 00:04:20,360 --> 00:04:24,000 Speaker 1: we're all better off when people can move jobs when 61 00:04:26,600 --> 00:04:30,080 Speaker 1: for you know, the top employees by uh you know, 62 00:04:30,160 --> 00:04:32,960 Speaker 1: paying them or giving them opportunities that they're interested in. 63 00:04:33,279 --> 00:04:35,360 Speaker 1: And if Google can't do that and somebody else can, 64 00:04:35,400 --> 00:04:37,960 Speaker 1: they should be able to leave. So if you can't 65 00:04:38,040 --> 00:04:41,719 Speaker 1: tell somebody how much you're making at Google, uh, it's 66 00:04:41,880 --> 00:04:45,159 Speaker 1: very hard to make a counter offer. Um, you know, 67 00:04:45,240 --> 00:04:48,640 Speaker 1: you're just fighting in the dark. Uh. So that kind 68 00:04:48,640 --> 00:04:54,760 Speaker 1: of thing is probably uh far too excessive. Andrea, one 69 00:04:54,800 --> 00:04:59,040 Speaker 1: thing that seems odd and a little bit scary is 70 00:04:59,080 --> 00:05:03,480 Speaker 1: that a core in the complaint. Google's investigations team engages 71 00:05:03,520 --> 00:05:08,279 Speaker 1: in a stop leaks campaign to enforce confidentiality policies by 72 00:05:08,320 --> 00:05:14,479 Speaker 1: asking employees to file suspicious activity reports about colleagues. Am 73 00:05:14,480 --> 00:05:18,960 Speaker 1: I overreacting to that? While the I think that details 74 00:05:19,040 --> 00:05:23,240 Speaker 1: will will matter, But again, we have a sort of 75 00:05:23,240 --> 00:05:28,240 Speaker 1: balanced interest. So because technology companies in particular sit in 76 00:05:28,520 --> 00:05:33,040 Speaker 1: an information critical point in our economy. For example, if 77 00:05:33,080 --> 00:05:37,880 Speaker 1: one technology worker suspected that a colleague had been co 78 00:05:38,000 --> 00:05:42,640 Speaker 1: opted by a foreignstance, foreign intelligence service to create a 79 00:05:43,240 --> 00:05:48,080 Speaker 1: backdoor and a technology or otherwise damage the trusted nature 80 00:05:48,120 --> 00:05:50,919 Speaker 1: of the product. We might want that kind of reporting 81 00:05:50,960 --> 00:05:55,640 Speaker 1: in that circumstance. Now, if the reporting circumstances are, for example, 82 00:05:56,120 --> 00:06:00,600 Speaker 1: a restriction on stopping a company from engage Jay and 83 00:06:00,680 --> 00:06:05,040 Speaker 1: say security spraud, we would view that as an overreach 84 00:06:05,160 --> 00:06:08,440 Speaker 1: in in that kind of a restriction. So the specifics 85 00:06:08,440 --> 00:06:13,240 Speaker 1: will matter, but in general, and it's not out of 86 00:06:13,279 --> 00:06:17,400 Speaker 1: the box and a bad idea to have an internal 87 00:06:17,440 --> 00:06:22,880 Speaker 1: reporting structure for companies when there appears to be impropriety happening, 88 00:06:23,600 --> 00:06:29,720 Speaker 1: uh within a particular group of co workers. Insider threats, 89 00:06:29,720 --> 00:06:33,880 Speaker 1: as a matter of information security for companies are perhaps 90 00:06:33,920 --> 00:06:38,640 Speaker 1: the most delicate and potentially most devastating kinds of threat. 91 00:06:38,720 --> 00:06:42,040 Speaker 1: So again it's a balancing act. Rebecca, just about forty 92 00:06:42,120 --> 00:06:45,920 Speaker 1: five seconds here. What kind of damages are available? Is 93 00:06:45,960 --> 00:06:50,040 Speaker 1: it damages for the one person or damages for the policy? 94 00:06:50,560 --> 00:06:55,200 Speaker 1: So they're asking for statutory damages. Now, I'm not deeply 95 00:06:55,240 --> 00:06:58,320 Speaker 1: familiar with the Labor Code, but say the complaints says 96 00:06:58,320 --> 00:07:02,880 Speaker 1: basically that it's per employee per pay period, because these 97 00:07:02,880 --> 00:07:04,880 Speaker 1: are restrictions you're just not supposed to have on the 98 00:07:04,920 --> 00:07:09,159 Speaker 1: employees UM. So that could add up pretty fast. Um. 99 00:07:09,160 --> 00:07:11,720 Speaker 1: Even if it's you know, a hundred dollars per employee 100 00:07:11,720 --> 00:07:15,520 Speaker 1: per pay periods UM, that's a fair amount of employees 101 00:07:15,560 --> 00:07:18,640 Speaker 1: and a fair number of pay periods that they're saying 102 00:07:18,680 --> 00:07:22,000 Speaker 1: it's extended fast. The families of three men killed at 103 00:07:22,080 --> 00:07:26,520 Speaker 1: Orlando's Pulse nightclub have sued Twitter, Facebook, and Google, accusing 104 00:07:26,560 --> 00:07:29,920 Speaker 1: them of allowing ices to use their sites to recruit fighters, 105 00:07:30,000 --> 00:07:34,440 Speaker 1: raise funds, and conduct operations. A California court previously ruled 106 00:07:34,440 --> 00:07:37,240 Speaker 1: that Twitter could not be held liabel under federal law 107 00:07:37,280 --> 00:07:40,320 Speaker 1: for similar claims because the claims were based on third 108 00:07:40,360 --> 00:07:44,320 Speaker 1: party content. The plaintiffs are using a novel legal strategy, 109 00:07:44,440 --> 00:07:47,600 Speaker 1: alleging that the social media company should be held liabel 110 00:07:47,960 --> 00:07:52,280 Speaker 1: for what sewers post on their website services because they 111 00:07:52,320 --> 00:07:57,679 Speaker 1: paid content with advertising. Um are We have been talking 112 00:07:57,680 --> 00:08:00,400 Speaker 1: with Rebecca tosh Net, professor at Georgetown you in Versity 113 00:08:00,480 --> 00:08:03,240 Speaker 1: Law School, and Andrew A. Twitchan professor of law at 114 00:08:03,320 --> 00:08:08,840 Speaker 1: Northeastern University. Andrea, what is the greatest challenge to these 115 00:08:08,960 --> 00:08:14,000 Speaker 1: kinds of lawsuits? The greatest challenge is most likely Section 116 00:08:14,120 --> 00:08:16,800 Speaker 1: to thirty of the Communications Decency Act, which was a 117 00:08:16,880 --> 00:08:20,240 Speaker 1: law that was passed by Congress over a decade ago 118 00:08:20,720 --> 00:08:25,720 Speaker 1: in order to stimulate the creation of Internet services and content. 119 00:08:26,160 --> 00:08:29,480 Speaker 1: And so, what it says is that basically platforms places 120 00:08:29,520 --> 00:08:33,800 Speaker 1: where users can post comments, are generally not held liable 121 00:08:33,880 --> 00:08:39,480 Speaker 1: for what people post as comments or in their created content, 122 00:08:40,440 --> 00:08:46,439 Speaker 1: unless that platform, for example, has actual knowledge of copyright infringement, 123 00:08:46,559 --> 00:08:48,760 Speaker 1: which may create a set of other legal obligations to 124 00:08:48,800 --> 00:08:52,120 Speaker 1: take down. But basically section two they provides a buffer 125 00:08:52,640 --> 00:08:56,000 Speaker 1: in order to allow for spaces on the Internet to 126 00:08:56,040 --> 00:08:59,240 Speaker 1: exist where people can freely comment and exchange ideas, so 127 00:08:59,320 --> 00:09:05,960 Speaker 1: it does not create attribution for those user created comments 128 00:09:06,600 --> 00:09:11,920 Speaker 1: pertaining to the platform itself. Rebecca, the plaintiffs attorney, says 129 00:09:11,960 --> 00:09:16,000 Speaker 1: his strategy is novel because he's alleging that the social 130 00:09:16,000 --> 00:09:19,640 Speaker 1: media company should be held libel for what users post 131 00:09:19,720 --> 00:09:24,240 Speaker 1: on their services because there is paid content with advertising 132 00:09:24,320 --> 00:09:28,640 Speaker 1: linked to it. Yeah, it's not novel and it's not 133 00:09:28,679 --> 00:09:33,240 Speaker 1: gonna work. Uh So, I mean, people have tried lots 134 00:09:33,240 --> 00:09:35,960 Speaker 1: of ways to get around sex and two thirty, Uh 135 00:09:36,160 --> 00:09:41,280 Speaker 1: this is one of them. And uh it's uh it's 136 00:09:41,280 --> 00:09:43,200 Speaker 1: not gonna work any better for them than it has 137 00:09:43,240 --> 00:09:49,160 Speaker 1: for anybody else. And Rebecca, is there a strategy that 138 00:09:49,480 --> 00:09:52,640 Speaker 1: would work or is this sort of an area of 139 00:09:52,960 --> 00:09:56,480 Speaker 1: where were there? This is a protection that these social 140 00:09:56,480 --> 00:10:01,280 Speaker 1: media sites have. Well, So, I mean, one possibility is 141 00:10:01,360 --> 00:10:04,520 Speaker 1: to change the law. We could do that. I don't 142 00:10:04,520 --> 00:10:07,000 Speaker 1: think it'd be a very good idea, but you know, 143 00:10:07,040 --> 00:10:10,560 Speaker 1: it is a law. Uh so uh, is there are 144 00:10:10,640 --> 00:10:14,680 Speaker 1: parts of it that could be changed? Um? Other than that, 145 00:10:15,160 --> 00:10:18,840 Speaker 1: I mean for something like this, really no, uh, And 146 00:10:18,880 --> 00:10:21,080 Speaker 1: even if you did change the law, actually for this 147 00:10:21,160 --> 00:10:24,720 Speaker 1: kind of thing, it's extremely hard to hold a third 148 00:10:24,720 --> 00:10:30,040 Speaker 1: party liabel for uh, inciting somebody else having incited violence. 149 00:10:30,240 --> 00:10:34,000 Speaker 1: So the first Amendment actually, I think would still be 150 00:10:34,040 --> 00:10:37,880 Speaker 1: a barrier at any claim like this. Um, yeah, Andrew, 151 00:10:37,880 --> 00:10:41,240 Speaker 1: do you agree? I do. It's it's one of those 152 00:10:41,280 --> 00:10:44,720 Speaker 1: situations where we have legally decided to strike a balance 153 00:10:44,800 --> 00:10:50,520 Speaker 1: in favor of speech and in favor of facilitating content creation. 154 00:10:51,200 --> 00:10:54,920 Speaker 1: And so this has been one of the foundational laws 155 00:10:54,960 --> 00:10:59,280 Speaker 1: of internet law since early on in the commercialization of 156 00:10:59,320 --> 00:11:02,640 Speaker 1: the Internet. And so unless we really want to reevaluate 157 00:11:02,679 --> 00:11:07,520 Speaker 1: the balance that we've historically struck between free speech on 158 00:11:07,559 --> 00:11:15,200 Speaker 1: the Internet and the court and other potentially criminal responsibilities 159 00:11:15,240 --> 00:11:19,720 Speaker 1: of platforms that facilitate third parties exchanging ideas on their 160 00:11:19,720 --> 00:11:26,720 Speaker 1: platforms short of rebalancing through NUBA. As Rebecca pointed out, um, 161 00:11:26,760 --> 00:11:29,720 Speaker 1: it is unlikely that this suit and similar suits like 162 00:11:29,800 --> 00:11:35,000 Speaker 1: it will succeed, and Rebecca, will this even get past 163 00:11:35,320 --> 00:11:39,199 Speaker 1: motion for some rejudgment? Uh? You know, I would assume 164 00:11:39,280 --> 00:11:42,400 Speaker 1: that the motion to dismiss is going to come soon. 165 00:11:42,640 --> 00:11:48,800 Speaker 1: And uh So there are judges uh that have occasionally 166 00:11:48,800 --> 00:11:51,800 Speaker 1: made errors on this kind of thing, and they're usually 167 00:11:51,800 --> 00:11:56,520 Speaker 1: corrected by an appeal. So while it's not impossible, I 168 00:11:56,679 --> 00:11:59,920 Speaker 1: wouldn't hold out much hope. All right, Thank you both 169 00:12:00,160 --> 00:12:04,079 Speaker 1: for discussing this case, which they come up often. They're interesting, 170 00:12:04,320 --> 00:12:07,560 Speaker 1: but it seems to be that they are very, very 171 00:12:07,640 --> 00:12:12,839 Speaker 1: hard to prosecute. And we've been talking to two professors 172 00:12:12,840 --> 00:12:16,880 Speaker 1: of law, Rebecca Tushnett, professor at Georgetown University Law School 173 00:12:17,120 --> 00:12:20,800 Speaker 1: and Andrew A Twian, professor of law at Northeastern University. 174 00:12:21,200 --> 00:12:23,480 Speaker 1: Coming up on Bloomberg Law, we're going to be talking 175 00:12:23,520 --> 00:12:28,120 Speaker 1: about President Barack Obama's attempts at this last minutes of 176 00:12:28,200 --> 00:12:34,240 Speaker 1: his administration to protect his environmental legacy from what Donald Trump, 177 00:12:34,280 --> 00:12:37,839 Speaker 1: who has vowed to undo that, might do when he 178 00:12:37,880 --> 00:12:41,080 Speaker 1: gets into office. That's coming up on Bloomberg Law. I'm 179 00:12:41,160 --> 00:12:42,880 Speaker 1: jun Brasso. This is Bloomberg