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