Speaker 1: Google is being sued over claims the company is illegally
Speaker 1: muzzling its workers with its sweeping confidentiality policies. An anonymous
Speaker 1: Google product manager alleges that Google's employee confidentiality agreement makes
Speaker 1: it a firing offense for employees to whistle blow to
Speaker 1: regulators or to disclose salaries, work skills, or experience to
Speaker 1: future employers. Google denies the claims. My guests are Rebecca Trishne,
Speaker 1: Professor at Georgetown University Law School, and Andrea Mtwitchen, Professor
Speaker 1: at Northeastern University Law School. Rebecca, let's start with the
Speaker 1: allegations that Google's policies prevent employees from communicating directly with
Speaker 1: regulators such as the SEC about potential legal violations. Does
Speaker 1: that fly in the face of federal whistleblower laws? Well, uh,
Speaker 1: there's there's actually, um, not a huge amount of federal
Speaker 1: law about this. Actually, what the what the complaint is
Speaker 1: saying is that, uh, the way that Google frames its
Speaker 1: policies UM violates federal policy, which is then a violation
Speaker 1: of California law. UM. And so, based on the allegations
Speaker 1: of the complaint, what they're saying is that Google tells
Speaker 1: its employees that it can't blow the whistle in lots
Speaker 1: of circumstances where by by law, Google shouldn't be stopping
Speaker 1: them from blowing the whistle. And Andrea, the suit was
Speaker 1: brought under California's Private Attorneys General Act, which basically allows
Speaker 1: employees to enforce the state labor Code. Tell us more
Speaker 1: about how that law works. As the specifics of the
Speaker 1: California law. Unfortunately, I'm not particularly familiar with that, but
Speaker 1: what I can tell you is the broader set of
Speaker 1: dynamics around the delicate balance between private sector contracts and
Speaker 1: the way that state law generally works in these circumstances. So,
Speaker 1: in general, when a company gets started and they bring
Speaker 1: in employees, it's obviously in their interest to have a
Speaker 1: relatively aggressive set of confidentiality obligations. Indeed, their information security
Speaker 1: duties would require them to have relatively aggressive confidentiality obligations,
Speaker 1: and we want that. We want companies to be able
Speaker 1: to defend their intellectual property. Now that said, we have
Speaker 1: a countervening policy in each state's contract law about excessive
Speaker 1: restrictions on mobility and on overreach in contract relating to
Speaker 1: confidentiality and restrictions on work in employment. So the way
Speaker 1: that the California Board is going to decide this claim
Speaker 1: will partially be through this traditional contract law analysis, looking
Speaker 1: at whether the scope of the restrictions on the employee's
Speaker 1: speech represents overreach in light of California's case law and
Speaker 1: statutory interpretations about the correct balance between the in lattual
Speaker 1: property and privacy interests of companies versus the right to
Speaker 1: work and the right to speak of employees as a
Speaker 1: matter of public policy, and in fact, in contract laws
Speaker 1: there are areas where we say that public policy acts
Speaker 1: as a counter veiling interest that supersedes the rights of
Speaker 1: private parties to engage in a bilateral agreement restricting speech.
Speaker 1: But in general, the contract law default is that we
Speaker 1: do have the right to agree to restrain ourselves from
Speaker 1: speaking about particular matters. So that's the balances at stakes, Rebecca,
Speaker 1: It's understandable that Google wants to protect proprietary business information.
Speaker 1: According to the complaint, though the policies hamstring employees from
Speaker 1: getting a new job by prohibiting them from telling a
Speaker 1: potential employer how much money they make or what kind
Speaker 1: of work they performed. Does that seem like a violations? Uh? So,
Speaker 1: in in general. Yes, Um so, as Andrew said, there, uh,
Speaker 1: you know, there are some things where you don't want
Speaker 1: someone leaving to take away company specific secrets. But at
Speaker 1: the same time, uh, it's actually uh the case that
Speaker 1: we're all better off when people can move jobs when
Speaker 1: for you know, the top employees by uh you know,
Speaker 1: paying them or giving them opportunities that they're interested in.
Speaker 1: And if Google can't do that and somebody else can,
Speaker 1: they should be able to leave. So if you can't
Speaker 1: tell somebody how much you're making at Google, uh, it's
Speaker 1: very hard to make a counter offer. Um, you know,
Speaker 1: you're just fighting in the dark. Uh. So that kind
Speaker 1: of thing is probably uh far too excessive. Andrea, one
Speaker 1: thing that seems odd and a little bit scary is
Speaker 1: that a core in the complaint. Google's investigations team engages
Speaker 1: in a stop leaks campaign to enforce confidentiality policies by
Speaker 1: asking employees to file suspicious activity reports about colleagues. Am
Speaker 1: I overreacting to that? While the I think that details
Speaker 1: will will matter, But again, we have a sort of
Speaker 1: balanced interest. So because technology companies in particular sit in
Speaker 1: an information critical point in our economy. For example, if
Speaker 1: one technology worker suspected that a colleague had been co
Speaker 1: opted by a foreignstance, foreign intelligence service to create a
Speaker 1: backdoor and a technology or otherwise damage the trusted nature
Speaker 1: of the product. We might want that kind of reporting
Speaker 1: in that circumstance. Now, if the reporting circumstances are, for example,
Speaker 1: a restriction on stopping a company from engage Jay and
Speaker 1: say security spraud, we would view that as an overreach
Speaker 1: in in that kind of a restriction. So the specifics
Speaker 1: will matter, but in general, and it's not out of
Speaker 1: the box and a bad idea to have an internal
Speaker 1: reporting structure for companies when there appears to be impropriety happening,
Speaker 1: uh within a particular group of co workers. Insider threats,
Speaker 1: as a matter of information security for companies are perhaps
Speaker 1: the most delicate and potentially most devastating kinds of threat.
Speaker 1: So again it's a balancing act. Rebecca, just about forty
Speaker 1: five seconds here. What kind of damages are available? Is
Speaker 1: it damages for the one person or damages for the policy?
Speaker 1: So they're asking for statutory damages. Now, I'm not deeply
Speaker 1: familiar with the Labor Code, but say the complaints says
Speaker 1: basically that it's per employee per pay period, because these
Speaker 1: are restrictions you're just not supposed to have on the
Speaker 1: employees UM. So that could add up pretty fast. Um.
Speaker 1: Even if it's you know, a hundred dollars per employee
Speaker 1: per pay periods UM, that's a fair amount of employees
Speaker 1: and a fair number of pay periods that they're saying
Speaker 1: it's extended fast. The families of three men killed at
Speaker 1: Orlando's Pulse nightclub have sued Twitter, Facebook, and Google, accusing
Speaker 1: them of allowing ices to use their sites to recruit fighters,
Speaker 1: raise funds, and conduct operations. A California court previously ruled
Speaker 1: that Twitter could not be held liabel under federal law
Speaker 1: for similar claims because the claims were based on third
Speaker 1: party content. The plaintiffs are using a novel legal strategy,
Speaker 1: alleging that the social media company should be held liabel
Speaker 1: for what sewers post on their website services because they
Speaker 1: paid content with advertising. Um are We have been talking
Speaker 1: with Rebecca tosh Net, professor at Georgetown you in Versity
Speaker 1: Law School, and Andrew A. Twitchan professor of law at
Speaker 1: Northeastern University. Andrea, what is the greatest challenge to these
Speaker 1: kinds of lawsuits? The greatest challenge is most likely Section
Speaker 1: to thirty of the Communications Decency Act, which was a
Speaker 1: law that was passed by Congress over a decade ago
Speaker 1: in order to stimulate the creation of Internet services and content.
Speaker 1: And so, what it says is that basically platforms places
Speaker 1: where users can post comments, are generally not held liable
Speaker 1: for what people post as comments or in their created content,
Speaker 1: unless that platform, for example, has actual knowledge of copyright infringement,
Speaker 1: which may create a set of other legal obligations to
Speaker 1: take down. But basically section two they provides a buffer
Speaker 1: in order to allow for spaces on the Internet to
Speaker 1: exist where people can freely comment and exchange ideas, so
Speaker 1: it does not create attribution for those user created comments
Speaker 1: pertaining to the platform itself. Rebecca, the plaintiffs attorney, says
Speaker 1: his strategy is novel because he's alleging that the social
Speaker 1: media company should be held libel for what users post
Speaker 1: on their services because there is paid content with advertising
Speaker 1: linked to it. Yeah, it's not novel and it's not
Speaker 1: gonna work. Uh So, I mean, people have tried lots
Speaker 1: of ways to get around sex and two thirty, Uh
Speaker 1: this is one of them. And uh it's uh it's
Speaker 1: not gonna work any better for them than it has
Speaker 1: for anybody else. And Rebecca, is there a strategy that
Speaker 1: would work or is this sort of an area of
Speaker 1: where were there? This is a protection that these social
Speaker 1: media sites have. Well, So, I mean, one possibility is
Speaker 1: to change the law. We could do that. I don't
Speaker 1: think it'd be a very good idea, but you know,
Speaker 1: it is a law. Uh so uh, is there are
Speaker 1: parts of it that could be changed? Um? Other than that,
Speaker 1: I mean for something like this, really no, uh, And
Speaker 1: even if you did change the law, actually for this
Speaker 1: kind of thing, it's extremely hard to hold a third
Speaker 1: party liabel for uh, inciting somebody else having incited violence.
Speaker 1: So the first Amendment actually, I think would still be
Speaker 1: a barrier at any claim like this. Um, yeah, Andrew,
Speaker 1: do you agree? I do. It's it's one of those
Speaker 1: situations where we have legally decided to strike a balance
Speaker 1: in favor of speech and in favor of facilitating content creation.
Speaker 1: And so this has been one of the foundational laws
Speaker 1: of internet law since early on in the commercialization of
Speaker 1: the Internet. And so unless we really want to reevaluate
Speaker 1: the balance that we've historically struck between free speech on
Speaker 1: the Internet and the court and other potentially criminal responsibilities
Speaker 1: of platforms that facilitate third parties exchanging ideas on their
Speaker 1: platforms short of rebalancing through NUBA. As Rebecca pointed out, um,
Speaker 1: it is unlikely that this suit and similar suits like
Speaker 1: it will succeed, and Rebecca, will this even get past
Speaker 1: motion for some rejudgment? Uh? You know, I would assume
Speaker 1: that the motion to dismiss is going to come soon.
Speaker 1: And uh So there are judges uh that have occasionally
Speaker 1: made errors on this kind of thing, and they're usually
Speaker 1: corrected by an appeal. So while it's not impossible, I
Speaker 1: wouldn't hold out much hope. All right, Thank you both
Speaker 1: for discussing this case, which they come up often. They're interesting,
Speaker 1: but it seems to be that they are very, very
Speaker 1: hard to prosecute. And we've been talking to two professors
Speaker 1: of law, Rebecca Tushnett, professor at Georgetown University Law School
Speaker 1: and Andrew A Twian, professor of law at Northeastern University.
Speaker 1: Coming up on Bloomberg Law, we're going to be talking
Speaker 1: about President Barack Obama's attempts at this last minutes of
Speaker 1: his administration to protect his environmental legacy from what Donald Trump,
Speaker 1: who has vowed to undo that, might do when he
Speaker 1: gets into office. That's coming up on Bloomberg Law. I'm
Speaker 1: jun Brasso. This is Bloomberg