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Uber Pulls Rider Tracking Feature After Settling FTC Privacy Violations

Over the last couple years, Uber has become virtually synonymous with legal troubles. They’ve faced case after case on everything from employment law to trade secret issues to sexual harassment lawsuits to simple failure to comply with DMV registration requirements. However, their most recent legal hot water has dealt with privacy law, the Federal Trade Commission (FTC), and false representations. Just a few weeks ago, these issues culminated in an FTC settlement agreeing to-among other things-20 years of FTC oversight.

As part of the settlement, Uber has agreed to overhaul their privacy policies and the implementation of those policies. One of the first of these changes has involved the removal of a much criticized rider tracking feature. For a while included a much criticized default feature that tracked user location for five to ten minutes after they got out of the car. You can already see how this might be abused. However, the feature was made even more of an issue by the fact that users had to jump through in-app hoops each time they looked for a ride if they wanted to not be tracked. The feature was apparently meant as a security measure for riders. However, the combination of Uber never really explaining the purpose of the feature to users and-as you’ll see as we discuss the settlement-Uber’s less than stellar track record when it comes to securing user data made pulling the rider tracking a near necessity.

This is likely the first step of many Uber will take in response to the FTC oversight it will face for the next couple decades. Let’s take a look at the problems that got them in this situation in the first place-the charges brought against them by the FTC, exactly what the settlement does, and how you can avoid Uber’s mistakes.

uberThe FTC Charges

The FTC is an agency, created by the Federal Trade Commission Act, with the goal of eliminating unfair competition and promoting consumer protection. They do this in a number of way but primarily by bringing charges against companies that either deceive or treat consumers unfairly. This includes things like false advertising, false business claims, breach of contract, scams, product defects, and more.

In Uber’s case, the charges brought by the FTC dealt with privacy issues. However, privacy at a federal level is a tricky concept. There’s no real guaranteed rights to privacy beyond the expectation of privacy which limits how the government may search and seize you and your property. When it comes to private companies, privacy protections exist but mainly as a web of federal statutes which apply piecemeal to specific situations such as credit reporting, finances, health information, etc. This being said, an enormous number of companies in this day and age have privacy policies which dictate their own stance on how they will behave regarding customers private information. This usually deals with the handling of personally identifiable information-things which can tell people who you are or where you are-rather than more general metadata. However, when a company represents that they will treat private information in a certain way then doesn’t follow its own privacy policies this creates a false representation situation. This was the gist of the FTC’s charges.

First, the FTC charged Uber with misrepresenting the extent to which it monitored its employees’ access to personal information about users and drivers. Second, they said that Uber represented the things they did to protect that information-no surprise given that Uber had an enormous 100,000 user data breach back in 2014.

Uber has said, both through its privacy policy and statements to the press, that they have a strict policy of prohibiting their employees from accessing rider or driver data. This general rule is subject to an exception of legitimate business purposes. However, despite having the policy in place, Uber didn’t take all the steps you would expect to follow through on this promise. They didn’t even have a system in place at all to see if employees viewed personal data until after the privacy policy was published. Even after the system was in place, it was nowhere near large enough or well-staffed enough to keep track of all the employees in such an enormous company. Then, in 2015, it stopped using the system altogether for months on end. This obviously wasn’t in line with what their policy represented, even if they had a system in place the FTC treated their policy promises as false because their infrastructure was nowhere near enough to reasonably follow through on their policy position.

Uber’s privacy policy also included statements about the security measures they provided to their users-encryption, firewalls, and the like. They promised that information would be stored safely and used only for authorized purposes. They promised the most up to date, industry standard, data security measures. They further promised that all personal information was kept secure to the “highest security standards available.” However, in the wake of the Uber data breach, their security measures came across a little lacking compared to their promises. They didn’t use all the security tools available, allowed engineers easy access to data with a single access code, didn’t store any information in an encrypted format until March 2015. Then there was the way the breach itself actually occurred-an Uber engineer posted the single code required for total access to all the information on Git Hub. The FTC felt that, while Uber did take some steps to protect information, they didn’t take reasonably priced security steps that could have prevented the breach-or simply allowed them to live up to their promises. Thus, the FTC brought this as another charge of false representation.

Avoiding Uber’s Mistakes

To make these charges go away, Uber agreed to a settlement with the FTC which forbids them from misrepresenting their privacy positions and security measures, implement a comprehensive privacy policy addressing the security risks they created, and submit to 20 years of FTC audits. If this sounds like a serious blow for a business to take, you’re quite correct. This is just one of the many shakeups Uber is facing, having just recently replaced its original CEO Travis Kalanick with Dara Khosrowshahi. However, they have publically stated a new commitment to improving their privacy policies. What’s more, their mistakes can be instructive for protecting your own business.

First and foremost, if you have a privacy policy follow your own policies. This doesn’t mean just following the letter of your promises. You will be expected to take reasonable steps to implement programs to ensure the protection of private information. This will usually be enough to comply with the basic level of privacy requirements placed on a private business. However, in this age of tech and internet it’s often worth consulting with a privacy professional. What’s more, if you are in a privacy sensitive field such as banking, credit reporting, health care and several other fields, there may be more laws that apply to your business. Uber has been committing an enormous number of resources to ensuring that it doesn’t run afoul of privacy law or the FTC again. Ultimately, this sort of situation is one where an ounce of prevention can be worth more than a pound of cure–protect your company by ensuring you have well drafted policies that you carefully follow.

The U.S. Supreme Court May Decide the Fate of Google Trademark

Everybody knows Google, much to the pleasure of Google itself. Google is one of the largest brands in the world and the best known. If you’ve used the internet odds are pretty good you’ve been to a Google site. The brand-and their titular search engine-is so ubiquitous that it’s far from uncommon to hear somebody refer to the very act of searching the internet as “googling.” It’s even in the Merriam-Webster  dictionary as a verb meaning to search the internet. This is the product of incredible marketing and market positioning. It also has the potential to shoot Google in the foot.

When Merriam made their changes, Google made a blog post which carefully explained that the addition-while flattering-should exclusively be used when referring to searching the internet with Google itself. This is because of concept in trademark known as genericide-losing trademark protection because your trademark becomes interchangeable in the public’s eyes with the type of product itself. Kleenex, trampolines, elevators, aspirin, cellophane, zippers, thermos, xerox, linoleum, band-aids. All very common products with one thing in common, they were once brand names that were so popular they lost protection by becoming generic terms for the product they are associated with.

Google has long fought, as with their Merriam-Webster post, to maintain their brand in the face of a public that might lead them to genericide through popularity. Now, there’s a chance Google will have to defend its mark in front of the highest court in the land-the Supreme Court of the United States.

googleThe Lawsuit Against Google

The lawsuit currently seeking to be heard by the Supreme Court is already half a decade old. It deals with one Chris Gillespie who registered a whopping 763 domain names following a singular formula-google[insert popular word here].com. Everything from “googledonaldtrump.com” to “googledisney.com.” Google obviously didn’t care for this and hit Gillespie with a cybersquatting complaint. Cybersquatting claims kick somebody off a domain name where they buy it with a bad faith intent to profit off another’s trademark. Gillespie, unsurprisingly, lost his domains. He then appealed saying that Google didn’t properly have a mark in the first place due to genericide. He lost that one too, however, the ruling on the case left room for his appeal to the Supreme Court. To understand his appeal, let’s take a look at exactly how genericide works.

Understanding Genericide

Trademark law itself provides protection to registered words or symbols used to represent a brand of good or service—guarding against others using the mark in a way that could confuse consumers as to source or sponsorship. It does this through trademarks, service marks, and a few other types of mark protection. Genericide, however, is an issue of the strength and registrability of a trademark.

The strength of a trademark is judged by its distinctiveness, the more distinctive the mark the greater protection it receives. A mark with an arbitrary relationship to the good it represents (such as Apple computers) or a totally made up word as a mark (such as Kodak) would receive the strongest protection and can always be registered with the Patent and Trademark Office (PTO).  A mark that suggests a quality of the good it is a mark for, such as Greyhound describing a swift form of transportation, can always receive trademark protection but have less strength than a fanciful or arbitrary mark.

Below these types of marks on the protection totem pole are descriptive marks—marks that actually describe some part of the good or service.  A good example of a descriptive trademark is All-Bran brand cereal, the brand actually describes the type of cereal sold. Descriptive marks may only receive protection so long as the mark is associated with the product or service in the eyes of the public. This is known as acquiring secondary meaning and generally takes some serious marketing and several years in the marketplace.  Five years is a pretty common number to see in relation to acquiring secondary meaning, but it has more to do with the thoughts of the public than any hard and fast period of time.

Finally, the very bottom of heap when it comes to trademarks is—you guessed it—generic trademarks. Generic trademarks are marks that are the common name for the product or service sold.  For example, Bread brand bread would be generic.  Generic marks are can never be registered as protected trademarks in the first place. Genericide occurs, as we discussed above, where the average consumer considers your mark a generic term for an entire class of product or service.

“Googling” something is a common term, it’s easy to see why it might be a target for this sort of lawsuit. However, the courts drew a distinction between how the public uses a mark and how they perceive it.

The Ruling in Favor of Google

Gillespie’s case focused on evidence of how often “google” was used as a verb. It showed rap lyrics using the term as a verb, it showed how often the public used it in that manner, it pointed to the dictionary definition of “googling.” What it didn’t do was show that Google was interchangeable with search engine products.

The court made a new distinction in approaching genericide-indiscriminate versus discriminate use. The determination of genericide hinges on how the public uses and views the mark. The court here made a distinction between whether the public refers to googling in reference to all search engines but with the actual Google search engine in mind or if they are referring to all search engines as Google. The issue was simply that, while Gillespie had quite a bit of evidence of the public using the term “google” to refer to the act of using a search engine. He provided basically no evidence that the term “google” wasn’t used for search engines that aren’t Google. In the case of Kleenex, this was easily proven by the interchangeable use of Kleenex and tissue. Kleenex was a branded adjective describing tissue and people were just asking for a Kleenex-thus generic. Where the term is turned into a verb, the court wasn’t ready to make the same link as a verb didn’t necessarily show the same link.

This didn’t make it impossible to use “verbification” to say something is generic, but the ruling certainly made it a lot harder-much to the pleasure of Google and other brands such as Adobe who are battling genericide as all altered photos are described as “photoshopped.”

This ruling had just enough new law to it to merit an appeal to the Supreme Court, and Gillespie has done exactly that.

Will Supreme Court Hear the Case?

Statistically no. The Supreme Court hears only a very small portion of the cases before it and generally only choose case dealing with unsettled issues of law which impact the entire nation as opposed to evidentiary issues.

However, the lower court ruling-while restricted to the 9th Circuit-has some serious potential impact. Turning brands into verbs is common. Gillespie’s request to be heard by the Supreme Court highlights windexing windows, tasering suspects, and photoshopping pictures. The ruling makes it much harder to consider any of the marks associated with these verbs generic. That’s a serious change in legal approach. The Supreme Court may yet hear the case.

Either way, this is not the first genericide lawsuit Google has faced and is unlikely to be the last. Google has entered common parlance due to its own success. However, they take steps like the response to Merriam-Webster mentioned above to try and ensure they avoid genericide. These are steps you too can take with your own businesses-always using the type of product in conjunction with your brand (Google search engine), always capitalizing your mark when you use it, avoiding using your mark as a noun or verb in your own materials (Google themselves break this rule sometimes by using their name as a verb), and-as Google did-posting materials correcting others where they use your mark as a generic term for your product.

John Oliver is Staring Down the Barrel of a Defamation Lawsuit

John Oliver is a funny guy, he frames serious issues in silly-oftentimes hilarious ways. However, if you happen to be a coal mining tycoon by the name of Robert Murray, you may be a bit less enthused about Oliver’s style of humorous reporting. After Oliver broadcast a piece targeting both President Trump’s favorable treatment of the coal industry and  Murray’s business practices- specifically raising questions about whether Murray’s practices regarding safety cost the lives of some of his employees. Murray took his anger over the piece to the courts and sued Oliver, HBO, and Time Warner.

Murray is no stranger to bringing defamation lawsuits-or to losing them. In Ohio he’s brought and lost seven separate defamation suits. He’s also currently suing the New York Times over publishing an article suggesting his actions exacerbated the deaths in a mine collapse. He’s also no stranger to the spotlight. For instance, he was in the news after he publically announced the firing of 156 people in response to the election of Former-President Obama.

The lawsuit alleges that John Oliver, HBO, and Time Warner are Hillary Clinton supporters-targeting the coal industry and Mr. Murray personal with defamatory lies. The charges Murray brings against Mr. Oliver include defamation, false light invasion of privacy, and intentional infliction of emotional distress. Murray asserts that Oliver’s statements represent defamation per se by suggesting that he has behaved in a manner incompatible with the proper conduct of his trade by implying that Mr. Murray did not pay attention to safety issues. It also takes issue with Mr. Oliver’s jabs at Murray’s appearance, health, and age.

Recently, Oliver lost the first true battle in the lawsuit-whether or not it would take place in federal court. Federal court is likely a more favorable place for Oliver in this suit as opposed to the West Virginia courts who are currently hearing the case. Federal courts tend to be more favorable to defamation defendants, and West Virginia in particular has had some history of judiciary taking money from coal companies to fund elections for state judges. Many have hailed this as the beginning of the end for not only the case, but Oliver himself. They look to Gawker’s famous bankruptcy after losing its own defamation case and wonder if Oliver and HBO are next. This is not likely to be the case, the statistics certainly are better in Federal Court, but the case will turn on the facts at hand and the law. With that in mind, let’s take a look at the lawsuit itself.

John OliverUnderstanding the Lawsuit

Each of the charges against Oliver are serious. However, the defamation is not only the big ticket item here, it is the most likely of the charges to succeed.  The intentional infliction of emotional distress charges cite harassment from fans. However, these actions are likely too far removed from Oliver’s statements to be predictably caused by them. False light charges require Oliver to have known his statements were false or to have disregarded a very high likelihood of falsehood. This is not only incredibly hard to prove, but Murray has provided no real evidence to this effect. Nor does it seem particularly likely. This being said, we’ll focus on how defamation works in general and in this case.

Defamation is a general term for a situation where somebody makes a false statement that damages your reputation. Slander can be generally understood as spoken defamation while libel can be understood as written defamation. A general claim of defamation requires the plaintiff to establish that a statement was made which: 1) negatively impacted the plaintiff’s reputation; 2) clearly referenced the party suing; 3) was communicated to at least one person who is not the plaintiff; 4) at least one person communicated the statement understood what the statement meant and who it referred to; 5) damaged the plaintiff’s reputation; and 6) wasn’t true.

Sometimes, as alleged in this case, some of these elements can be skipped over by showing something which is defamation per se.  Where this is the case, a plaintiff just needs to show damages. The usual situations where this applies are for statements which either: 1) imply criminal activity; 2) imply a serious, infectious disease; 3) implies unchaste activity or sexual misconduct; or 4) implies a person behaved in a way outside the acceptable behavior of their profession. Accusing Murray of ignoring safety issues likely falls into the fourth of these categories, as his lawyers have alleged. This means that much of this case will come down to the exceptions to defamation rules.

In order to be defamatory, a statement must be made as if it were factual as opposed to a opinion. This is because the truthfulness of an opinion is irrelevant if it is clearly the subjective opinion of just one person. However, where somebody says they have an opinion based on specific facts then the facts supporting their opinion can themselves be defamatory. This is arguable in this case. Oliver certainly presents the report as an opinion piece supported by facts. It seems unlikely that this will be of much use to the comedian.

The next defamation defense that Oliver will likely turn to is satire-true satire cannot be defamatory as a matter of law. While defining satire is a tricky matter, it is generally agreed that satire is a work targeting an entity or entities—often but not always a government figure—for exaggerated commentary blurring the line between truth and the ridiculous.  A true satire, for legal purposes, must blur the lines between truth and the outrageous in such a way as to make a reasonable person recognize that the satire does not express actual facts.

Whether or not Oliver’s critiques are satire is up for debate. Just from the way it is presented, the report could be interpreted as not an outrageous representation of the truth but rather a humorous critique that presents facts as true but in such a manner as to highlight their ridiculousness. That being said, the flip side to the argument is that the report is exaggerated with the purpose of exposing Murray’s business practices. The ultimate issue is whether a reasonable person would see the work as satire or as factual news-due to the presentation of Oliver’s show as a news program (it essentially is) providing a defense of satire is likely an uphill battle for Oliver and HBO.

There are two other elements that could enhance the evidentiary burden on Murray-public figure rules and public interest rules. Public officials and public figures, celebrities, politicians, well-known businessmen and the like, can only sue if a person knew or should have known their statements were false. The statements must have been made with actual malice–purposefully made to harm the plaintiff’s reputation. Whether somebody is a public figure is generally based on their fame and notoriety. Murray is well-known. However, whether or not he is so well known as to be a public figure is in question. He’s certainly seen his share of media scrutiny but could hardly be called a public figure. You can also make yourself a public figure on a specific issue through actions such as a lawsuit-like the one Murray has brought against the New York Times over a similar issue to what Oliver brought up in his report. This defense may help Oliver, but it will take some serious facts to show how famous Murray is.

Public interest refers to a defense against defamation for statements reported to public with an honest belief in their truthfulness where the public has an interest in learning about an issue.  This is a very common one for news outlets who are sued-as they often are-for defamation. It also has a lot of potential for Oliver. If Oliver truly believed his statements, and Murray has offered essentially no evidence that he didn’t, the public definitely has an interest in ensuring businessmen take steps to ensure the safety of their employees. There is still wiggle room here for Murray. However, this seems like it will be a very strong defense for Oliver.

Finally, there is one more absolute defense to defamation we haven’t addressed-the truth. A defamatory statement has to be false. The ACLU’s amicus brief on the issue entertainingly uses this to highlight the similarities in appearance between Murray and Dr. Evil from Austin Powers-mocking his claims over the comparison as defeated by their truth. However, in seriousness, if there is sufficient truth to what Oliver has said–or with one of the above exceptions he at least believes their truth–then there can be no claim of defamation.

With all this aside, let’s address a few of the claims of defamation from Murray. Specifically those regarding insults against him. Insults are almost always a statement of opinion. Calling somebody evil, ugly, or worse can be cruel. However, unless they are very rarely properly targeted with a defamation lawsuit.

Will This be the End of John Oliver?

No. Absolutely not. That’s ridiculous. The case is far from ironclad on either side but it is essentially certain that a company like HBO is not going to bankrupt itself on a defamation ruling like Gawker. Even were the lawsuit to succeed, a questionable assumption, the case itself has made itself victim of one of the oddities of such a lawsuit-by bringing a defamation claim Murray has brought far more free publicity to the topic and the show than HBO and John Oliver could have hoped for in their wildest dreams. They say there is no such thing as bad publicity, Gawker says otherwise. However, despite some saying the contrary, it’s very unlikely this is the end of the road for John Oliver. The next real battle will be over Murray’s attempts to place a gag order on Oliver-barring him from rebroadcasting his report or talking about the lawsuit. We’ll have to see how that turns out-this sort of injunction requires the court to believe that Murray has a strong chance of success. How they rule on it may be a good indicator of where the case stands.

Martin Shkreli Convicted of Fraud

Martin Shkreli is, quite arguably, one of the most hated men in the United States of America. After drawing the ire of the nation a few years back with his choice to increase the price of a critical AIDS drug by around 5770%, followed by a completely remorseless defense of his actions, he has continued to diminish himself in the eyes of the public with a series of–presumably affluenza influenced–publicity stunts flaunting his wealth and lack of sympathy or interest in others. However, it is not his well publicized price jacking that landed him in the courts, it was criminal securities fraud.

The Federal Government had accused Mr. Shkreli of eight different counts of fraud and conspiracy to commit fraud. One charge each of fraud for his handling of two of his hedge funds-MSMB Capital and MSMB Healthcare. These charges essentially charged Mr. Shkreli with running a Ponzi scheme-cheating investors by paying older investors with money from newer ones. There were also charges of conspiracy to commit wire fraud and charges of conspiracy to commit securities. Finally, Mr. Shkreli faced charges for conspiracy to commit wire fraud by using funds from the MSMB hedge funds to defraud a pharma company called Retrophin of which he was CEO–using money from Retrophin to pay back MSMB investors as well as to cover his personal debts.

Martin ShkreliMost of the charges can be boiled down to either Ponzi scheme style investment practices or lying to people to get them to invest in his funds-often in the form of formulating false back stories for himself to match the lives of would-be investors and substantially exaggerating his financial experience and education. He also made a practice of substantially overpromising returns, downplaying risks, and fabricating the financial state of his businesses. For example, prosecutors showed evidence that Shkreli told investors his companies had $80M in the bank when he only had around $11,000. What’s more, when investors asked for their money back, Shkreli would put them off for months while acquire the money to return for them.

Of the charge facing him, Mr. Shkreli was convicted of conspiracy to commit fraud on Retrophin and a count of securities fraud each for both MSMB hedge funds.

Understanding the Charges

Securities fraud is an incredibly broad charge, it can cover innumerable evils. To try to fully explain securities fraud would be to attempt to fit books worth of information into a short article. However, what we can do is look at exactly how fraud is established at a federal level and the additional elements inherent to securities and wire fraud–the charges leveled against Shkreli.

Fraud itself is pretty simple in its elements. However, those elements themselves can be complicated. In order to show fraud you need to show that somebody:

  1. Made a material false statement;
  2. Intended to deceive;
  3. The victim actually and justifiably depended on the statement; and
  4. Depending on the false statement damaged the victim.

A material statement is one that actual impacts the victims decision in taking the action that damages them. So basically, if somebody lies about what car they drive it’s unlikely to change your mind on receiving heart surgery so they wouldn’t be guilty of fraud. Also, if somebody lies and the victim doesn’t believe them, there would be no fraud charges. Reliance on a fraudulent statement needs to be justified, which means that if a reasonable person would never believe or rely on a statement there is no case for fraud. Fraud also does not require an outright lie, there are circumstances where somebody can commit fraud through an intentional complete omission or concealment of a fact or by providing an incomplete truth.

Wire fraud and securities fraud are characterized under the law with the basic fraud elements but with one additional element each. For wire fraud, the fraud must be committed by a mail or wire communication. For securities fraud, the fraud must be in connection with the purchase or sale of securities. This includes Ponzi schemes, lying to investors, insider trading, front running, cooking the books and many more types of fraud–basically anything that seeks to deceive investors in violation of securities law and SEC guidelines or in relation to the sale of stocks and commodities.

You’ve also no doubt noticed that Shkreli is, in addition to his charges, also charged with conspiracy to commit basically all those charges. Conspiracy is another incredibly complicated area of criminal law. However, it can provide an additional charge beyond just the charge for the crime itself. To avoid getting to deep into another topic that could be a series of articles unto itself, conspiracy can be simplified as a situation where two or more people were in agreement to commit a crime. This isn’t enough on its own in most cases. There needs to be at least some action taken towards accomplishing the planned crime. In Shkreli’s case, this relied on collaboration between him and one of his former attorneys in committing his acts of fraud.

Shkreli’s Future

Leading up to the trial, Shkreli was not particular concerned about the case. The day he was indicted he went home and streamed video of himself playing video games. He constantly dismissed the case as ridiculous on social media, describing it as a “witch hunt by self-serving prosecutors” and posting of Facebook-in a post expressing pro-Trump sentiment-the need to “drain the sewer that is the [Department of Justice].”

However, as the verdict against him was read reports describe him as initially visibly shaken. The effects were not long lasting however, he and his lawyer have since described the ruling-dodging five counts-as a victory. Shkreli continued to call the case a witch hunt even after the ruling.

Even with just three of eight counts against him coming back guilty, Shkreli faces as much as 20 years in prison. However, the truth is that it’s very unlikely that he will face the full amount–especially considering his lack of previous criminal history. As of now, Shkreli is out on $5M bail. The three guilty counts also can, and almost certainly will, be appealed.

For now, Shkreli is predictably treating the whole situation as a joke. During the trial, prosecutors characterized Mr. Shkreli as a man who believed himself above the law, his behavior after the ruling tracks with this. Only around an hour after the guilty ruling, he was streaming online telling his followers that any sentence against him would be “close to nil” and predicting a Club Fed situation where he’d play video games and basketball all day for a few months.

There is a fair bit of judicial discretion as to exactly how much time Mr. Shkreli will face and a long way to go before an ultimate end to this case will be reached. However, the weight of being found guilty of fraud-and the repercussions of that decision-seem to have reached Mr. Shkreli not at all. We’ll simply have to wait and see where this case leads and just how hefty the ramifications of Mr. Shkreli’s fraud end up being.

Google Memo Writer Would Likely Lose Lawsuit Against Google

Former Google software engineer James Damore was fired by Google for writing a memo titled “Google’s Ideological Echo Chamber” that critics have labeled as “anti-diversity.” Damore’s memo was originally on a private internal company discussion board, but was quickly shared outside Google.

Google, currently under investigation by the Department of Labor for paying women less than men, has distanced itself from Damore’s memo, which claims that numerous differences between women and men are biological. Google’s new Vice President of Diversity, Integrity and Governance, Danielle Brown, has released a statement that the memo is “not a viewpoint that I or this company endorses, promotes or encourages.”

Damore says he is considering bringing a suit against Google for his recent dismissal, though exactly what claims he thinks will be successful in court is unclear.

GoogleWhat about Free Speech?

It’s a common misconception that free speech protects everyone against termination or discrimination. The First Amendment, and the ban against restricting free speech, is constitutional law. The Constitution only applies to governments: the federal government, the states, and local counties. The Constitution does NOT apply to private corporations. If Mr. Damore was terminated for writing his memo while working for California’s Department of Motorized Vehicles, he would have a strong free speech case against California. However, since Damore’s employer, Google, was a private employer, the First Amendment does not apply to this case.

However, while Google may prevail legally, this is a political, employment, and public relations nightmare that most major corporations don’t want to deal with. Google has built a reputation and social philosophy on diversity. Most conservative platforms and publications this week have already pointed out the hypocrisy: what’s the point in having diversity in race or gender if your team’s thoughts and viewpoints aren’t diverse? Diversity as a value is superficial if the only diversity celebrated is the person’s skin or appearance.

Still, this is a political question that will only affect law if public opinion changes enough.

Is There a Discrimination Suit Here?

Employment law is premised on two ideas: 1. that employers (and employees) may terminate “at will” an employment relationship for any reason other than an illegal reason and 2. One of those illegal reasons is discrimination based on a specific personal trait, such as race or gender. Notably, political ideology is not on the list of protected traits in the Civil Rights Act. This means that while a private company cannot fire a woman for being feminine, as that would be gender discrimination; the company could fire that woman for being feminist if she spends her time in the office talking about women’s rights issues.

Damore could attempt to bring a case against Google under the Civil Rights Act by arguing that Google discriminated against him for being a man or for being white. However, that claim would be incredibly hard to support. Google could just claim that it fired Damore because it didn’t like the memo he wrote. There’s nothing about the memo itself to suggest that the author was 100% a white man. Google does not have a history of discriminating white men and it doesn’t have a hostile work environment towards white men. In fact, given that white men make up the majority of the company, it’s a pretty safe assumption that Google’s problem with Damore is what he wrote rather than his race or gender.

What about California Law?

Although the federal Civil Rights Act doesn’t offer any protection for discrimination based on politics, California employment law does protection against discrimination based on “political activities or affiliations.” Although this phrase is somewhat vague, there is some consensus on what kinds of activities are protected. Employers cannot restrict or retaliate against their employees for what they do outside of the office. Employers cannot terminate or demote employees simply for having opposing political views or affiliations.

Damore potentially has a case based on this claim, as he was fired for expressing his views on gender and for his political views. Damore wrote a reasoned memo on what he thought were problematic political biases and Google responded by firing him. However, Google could argue that he wasn’t fired for his political affiliations or his activities, but for creating a hostile work environment. According to Google, Damore’s views would make the women at their offices uncomfortable. This is a real issue for Google, because promotions are based on peer review; Google cannot trust that Damore will be treated fairly by women or that he will treat women fairly after his memo ended up in the evening news.

Is Damore a Whistleblower?

Another route Damore could try is claiming to be a whistleblower. Affirmative action programs are often viewed as discriminatory against “majority” groups like white men. Since employment law prohibits discrimination based on race or gender, Google’s plans to admit only women into certain programs would be potentially discriminatory. If that is true, then Damore is a whistleblower against such discrimination.

Of course, claiming to be a whistleblower only works if Google is breaking the law and Damore is reporting it. Affirmative action programs have survived this long because courts often do not consider them illegal discrimination. The racism and sexism that employment law protects against is based on animus – hostility towards a certain group. Proponents have often won by arguing that their discrimination is based on helping certain groups rather than putting down other groups. Affirmative action is not about being anti-men, but pro-women. The fact that there are only two genders and that one is automatically disfavored if the other gender is favored doesn’t often enter into the analysis.

A Sign of the Times

Ironically, the Civil Rights Act that an employment attorney might try to invoke is premised on the very principles that Damore was writing against. The Civil Rights Act is premised on the idea of protecting race and gender. Granted, most employment suits are brought to protect specific races and genders, but the overall focus is on a person’s surface traits instead of viewpoint discrimination. At this time, there is simply no legal framework Damore could use to receive compensation for his termination.

This is a real shame though. Damore’s memo was articulate and very persuasive. It had a clear thesis, its premises were supported by examples, and it pinpointed specific problems and offered solutions to the problems it identified. To be sure, Damore himself makes a number of assumptions and has a number of biases in his own memo. Still, Damore makes a number of points that are very interesting and engaging. As a hiring manager, I did notice that men were more likely to ask for and negotiate for a higher salary than women. Whether or not that discrepancy exists because of biological differences is up to debate, but that is the point. Google should have engaged in that debate instead of firing the author of that debate.

Google has failed to live up to its business values and philosophies by terminating Damore. But the damage is not limited to Google’s reputation or bottom line. It is rare today to find thoughtful and intelligent political discussion in the public sphere; last year’s presidential election is an example of exactly how far we, as a nation, have fallen in that regard.

Google had a perfect opportunity to engage in the kind of frank debate that the public desperately needs. Google dropped the ball. Small wonder then, that a brainless sound bite machine like Donald Trump should prevail in today’s political environment, when even Google derides an opportunity for outstanding debate. I hope Damore finds a worthy opponent to continue his discussion. In the meantime, I will mourn for our public discourse.