WEBVTT - Internet Giants Face Lawsuits for Terrorism Liability (Audio)

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<v Speaker 1>Google is being sued over claims the company is illegally

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<v Speaker 1>muzzling its workers with its sweeping confidentiality policies. An anonymous

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<v Speaker 1>Google product manager alleges that Google's employee confidentiality agreement makes

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<v Speaker 1>it a firing offense for employees to whistle blow to

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<v Speaker 1>regulators or to disclose salaries, work skills, or experience to

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<v Speaker 1>future employers. Google denies the claims. My guests are Rebecca Trishne,

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<v Speaker 1>Professor at Georgetown University Law School, and Andrea Mtwitchen, Professor

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<v Speaker 1>at Northeastern University Law School. Rebecca, let's start with the

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<v Speaker 1>allegations that Google's policies prevent employees from communicating directly with

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<v Speaker 1>regulators such as the SEC about potential legal violations. Does

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<v Speaker 1>that fly in the face of federal whistleblower laws? Well, uh,

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<v Speaker 1>there's there's actually, um, not a huge amount of federal

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<v Speaker 1>law about this. Actually, what the what the complaint is

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<v Speaker 1>saying is that, uh, the way that Google frames its

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<v Speaker 1>policies UM violates federal policy, which is then a violation

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<v Speaker 1>of California law. UM. And so, based on the allegations

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<v Speaker 1>of the complaint, what they're saying is that Google tells

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<v Speaker 1>its employees that it can't blow the whistle in lots

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<v Speaker 1>of circumstances where by by law, Google shouldn't be stopping

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<v Speaker 1>them from blowing the whistle. And Andrea, the suit was

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<v Speaker 1>brought under California's Private Attorneys General Act, which basically allows

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<v Speaker 1>employees to enforce the state labor Code. Tell us more

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<v Speaker 1>about how that law works. As the specifics of the

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<v Speaker 1>California law. Unfortunately, I'm not particularly familiar with that, but

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<v Speaker 1>what I can tell you is the broader set of

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<v Speaker 1>dynamics around the delicate balance between private sector contracts and

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<v Speaker 1>the way that state law generally works in these circumstances. So,

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<v Speaker 1>in general, when a company gets started and they bring

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<v Speaker 1>in employees, it's obviously in their interest to have a

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<v Speaker 1>relatively aggressive set of confidentiality obligations. Indeed, their information security

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<v Speaker 1>duties would require them to have relatively aggressive confidentiality obligations,

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<v Speaker 1>and we want that. We want companies to be able

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<v Speaker 1>to defend their intellectual property. Now that said, we have

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<v Speaker 1>a countervening policy in each state's contract law about excessive

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<v Speaker 1>restrictions on mobility and on overreach in contract relating to

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<v Speaker 1>confidentiality and restrictions on work in employment. So the way

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<v Speaker 1>that the California Board is going to decide this claim

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<v Speaker 1>will partially be through this traditional contract law analysis, looking

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<v Speaker 1>at whether the scope of the restrictions on the employee's

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<v Speaker 1>speech represents overreach in light of California's case law and

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<v Speaker 1>statutory interpretations about the correct balance between the in lattual

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<v Speaker 1>property and privacy interests of companies versus the right to

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<v Speaker 1>work and the right to speak of employees as a

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<v Speaker 1>matter of public policy, and in fact, in contract laws

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<v Speaker 1>there are areas where we say that public policy acts

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<v Speaker 1>as a counter veiling interest that supersedes the rights of

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<v Speaker 1>private parties to engage in a bilateral agreement restricting speech.

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<v Speaker 1>But in general, the contract law default is that we

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<v Speaker 1>do have the right to agree to restrain ourselves from

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<v Speaker 1>speaking about particular matters. So that's the balances at stakes, Rebecca,

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<v Speaker 1>It's understandable that Google wants to protect proprietary business information.

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<v Speaker 1>According to the complaint, though the policies hamstring employees from

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<v Speaker 1>getting a new job by prohibiting them from telling a

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<v Speaker 1>potential employer how much money they make or what kind

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<v Speaker 1>of work they performed. Does that seem like a violations? Uh? So,

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<v Speaker 1>in in general. Yes, Um so, as Andrew said, there, uh,

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<v Speaker 1>you know, there are some things where you don't want

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<v Speaker 1>someone leaving to take away company specific secrets. But at

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<v Speaker 1>the same time, uh, it's actually uh the case that

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<v Speaker 1>we're all better off when people can move jobs when

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<v Speaker 1>for you know, the top employees by uh you know,

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<v Speaker 1>paying them or giving them opportunities that they're interested in.

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<v Speaker 1>And if Google can't do that and somebody else can,

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<v Speaker 1>they should be able to leave. So if you can't

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<v Speaker 1>tell somebody how much you're making at Google, uh, it's

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<v Speaker 1>very hard to make a counter offer. Um, you know,

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<v Speaker 1>you're just fighting in the dark. Uh. So that kind

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<v Speaker 1>of thing is probably uh far too excessive. Andrea, one

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<v Speaker 1>thing that seems odd and a little bit scary is

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<v Speaker 1>that a core in the complaint. Google's investigations team engages

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<v Speaker 1>in a stop leaks campaign to enforce confidentiality policies by

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<v Speaker 1>asking employees to file suspicious activity reports about colleagues. Am

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<v Speaker 1>I overreacting to that? While the I think that details

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<v Speaker 1>will will matter, But again, we have a sort of

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<v Speaker 1>balanced interest. So because technology companies in particular sit in

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<v Speaker 1>an information critical point in our economy. For example, if

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<v Speaker 1>one technology worker suspected that a colleague had been co

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<v Speaker 1>opted by a foreignstance, foreign intelligence service to create a

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<v Speaker 1>backdoor and a technology or otherwise damage the trusted nature

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<v Speaker 1>of the product. We might want that kind of reporting

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<v Speaker 1>in that circumstance. Now, if the reporting circumstances are, for example,

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<v Speaker 1>a restriction on stopping a company from engage Jay and

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<v Speaker 1>say security spraud, we would view that as an overreach

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<v Speaker 1>in in that kind of a restriction. So the specifics

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<v Speaker 1>will matter, but in general, and it's not out of

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<v Speaker 1>the box and a bad idea to have an internal

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<v Speaker 1>reporting structure for companies when there appears to be impropriety happening,

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<v Speaker 1>uh within a particular group of co workers. Insider threats,

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<v Speaker 1>as a matter of information security for companies are perhaps

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<v Speaker 1>the most delicate and potentially most devastating kinds of threat.

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<v Speaker 1>So again it's a balancing act. Rebecca, just about forty

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<v Speaker 1>five seconds here. What kind of damages are available? Is

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<v Speaker 1>it damages for the one person or damages for the policy?

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<v Speaker 1>So they're asking for statutory damages. Now, I'm not deeply

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<v Speaker 1>familiar with the Labor Code, but say the complaints says

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<v Speaker 1>basically that it's per employee per pay period, because these

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<v Speaker 1>are restrictions you're just not supposed to have on the

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<v Speaker 1>employees UM. So that could add up pretty fast. Um.

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<v Speaker 1>Even if it's you know, a hundred dollars per employee

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<v Speaker 1>per pay periods UM, that's a fair amount of employees

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<v Speaker 1>and a fair number of pay periods that they're saying

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<v Speaker 1>it's extended fast. The families of three men killed at

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<v Speaker 1>Orlando's Pulse nightclub have sued Twitter, Facebook, and Google, accusing

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<v Speaker 1>them of allowing ices to use their sites to recruit fighters,

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<v Speaker 1>raise funds, and conduct operations. A California court previously ruled

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<v Speaker 1>that Twitter could not be held liabel under federal law

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<v Speaker 1>for similar claims because the claims were based on third

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<v Speaker 1>party content. The plaintiffs are using a novel legal strategy,

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<v Speaker 1>alleging that the social media company should be held liabel

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<v Speaker 1>for what sewers post on their website services because they

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<v Speaker 1>paid content with advertising. Um are We have been talking

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<v Speaker 1>with Rebecca tosh Net, professor at Georgetown you in Versity

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<v Speaker 1>Law School, and Andrew A. Twitchan professor of law at

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<v Speaker 1>Northeastern University. Andrea, what is the greatest challenge to these

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<v Speaker 1>kinds of lawsuits? The greatest challenge is most likely Section

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<v Speaker 1>to thirty of the Communications Decency Act, which was a

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<v Speaker 1>law that was passed by Congress over a decade ago

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<v Speaker 1>in order to stimulate the creation of Internet services and content.

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<v Speaker 1>And so, what it says is that basically platforms places

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<v Speaker 1>where users can post comments, are generally not held liable

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<v Speaker 1>for what people post as comments or in their created content,

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<v Speaker 1>unless that platform, for example, has actual knowledge of copyright infringement,

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<v Speaker 1>which may create a set of other legal obligations to

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<v Speaker 1>take down. But basically section two they provides a buffer

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<v Speaker 1>in order to allow for spaces on the Internet to

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<v Speaker 1>exist where people can freely comment and exchange ideas, so

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<v Speaker 1>it does not create attribution for those user created comments

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<v Speaker 1>pertaining to the platform itself. Rebecca, the plaintiffs attorney, says

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<v Speaker 1>his strategy is novel because he's alleging that the social

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<v Speaker 1>media company should be held libel for what users post

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<v Speaker 1>on their services because there is paid content with advertising

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<v Speaker 1>linked to it. Yeah, it's not novel and it's not

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<v Speaker 1>gonna work. Uh So, I mean, people have tried lots

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<v Speaker 1>of ways to get around sex and two thirty, Uh

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<v Speaker 1>this is one of them. And uh it's uh it's

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<v Speaker 1>not gonna work any better for them than it has

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<v Speaker 1>for anybody else. And Rebecca, is there a strategy that

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<v Speaker 1>would work or is this sort of an area of

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<v Speaker 1>where were there? This is a protection that these social

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<v Speaker 1>media sites have. Well, So, I mean, one possibility is

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<v Speaker 1>to change the law. We could do that. I don't

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<v Speaker 1>think it'd be a very good idea, but you know,

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<v Speaker 1>it is a law. Uh so uh, is there are

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<v Speaker 1>parts of it that could be changed? Um? Other than that,

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<v Speaker 1>I mean for something like this, really no, uh, And

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<v Speaker 1>even if you did change the law, actually for this

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<v Speaker 1>kind of thing, it's extremely hard to hold a third

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<v Speaker 1>party liabel for uh, inciting somebody else having incited violence.

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<v Speaker 1>So the first Amendment actually, I think would still be

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<v Speaker 1>a barrier at any claim like this. Um, yeah, Andrew,

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<v Speaker 1>do you agree? I do. It's it's one of those

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<v Speaker 1>situations where we have legally decided to strike a balance

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<v Speaker 1>in favor of speech and in favor of facilitating content creation.

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<v Speaker 1>And so this has been one of the foundational laws

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<v Speaker 1>of internet law since early on in the commercialization of

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<v Speaker 1>the Internet. And so unless we really want to reevaluate

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<v Speaker 1>the balance that we've historically struck between free speech on

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<v Speaker 1>the Internet and the court and other potentially criminal responsibilities

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<v Speaker 1>of platforms that facilitate third parties exchanging ideas on their

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<v Speaker 1>platforms short of rebalancing through NUBA. As Rebecca pointed out, um,

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<v Speaker 1>it is unlikely that this suit and similar suits like

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<v Speaker 1>it will succeed, and Rebecca, will this even get past

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<v Speaker 1>motion for some rejudgment? Uh? You know, I would assume

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<v Speaker 1>that the motion to dismiss is going to come soon.

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<v Speaker 1>And uh So there are judges uh that have occasionally

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<v Speaker 1>made errors on this kind of thing, and they're usually

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<v Speaker 1>corrected by an appeal. So while it's not impossible, I

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<v Speaker 1>wouldn't hold out much hope. All right, Thank you both

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<v Speaker 1>for discussing this case, which they come up often. They're interesting,

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<v Speaker 1>but it seems to be that they are very, very

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<v Speaker 1>hard to prosecute. And we've been talking to two professors

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<v Speaker 1>of law, Rebecca Tushnett, professor at Georgetown University Law School

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<v Speaker 1>and Andrew A Twian, professor of law at Northeastern University.

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<v Speaker 1>Coming up on Bloomberg Law, we're going to be talking

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<v Speaker 1>about President Barack Obama's attempts at this last minutes of

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<v Speaker 1>his administration to protect his environmental legacy from what Donald Trump,

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<v Speaker 1>who has vowed to undo that, might do when he

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<v Speaker 1>gets into office. That's coming up on Bloomberg Law. I'm

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<v Speaker 1>jun Brasso. This is Bloomberg