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When They Pay You, They Own You

Lesson for the day: "Free speech" is a governmental concept. It doesn't apply to private enterprise. So you can lawfully say anything [non-threatening] that you want about Dick Cheney or George Bush (well, in theory), but if you start talking about your employer -- hey, man, nice knowing you, we'll send your redacted belongings by UPS Ground. And just make sure you don't say anything that might get our lawyers excited, once you're out the door.

It's an axiom of American Libertarianism that we negotiate (explicitly or implicitly) with employers for the right to use our labor power. (Hell, it's an axiom of Marxism, for that matter.) But what terms have we negotiated? What have we given up?

Joyce Park (a.k.a. "Troutgirl") is a PHP expert, who until 3pm yesterday was a development manager at Friendster. Today, she's a fired dev mgr at Friendster. The reason given was that she had blogged about the company.

Let's be clear: She hadn't revealed any business confidential information, and she hadn't said anything really even very bad about them. The worst thing that I've found so far was a snarky, weary comment about app performance ("hopefully we can now stop being a byword for unacceptably poky site performance"). But she's out the door, with her blogging activity given as the stated reason.

Again, let's be clear: She was fired for things she did on her own time, with her own resources. She was fired for voicing an opinion about matters of public record. She was fired for putting into words thoughts that were in her head. And if I may judge, in a fairly judicious way.

What surprises me so far is not the groundswell of peer support (there's a movement among geeks to cancel Friendster accounts in sympathy); what surprises me is how many folks think this is a perfectly appropriate thing for Friendster to do. The prevailing wisdom in some quarters seems to be that this is basically just business ethics 101. Hell, they owned her labor power, right? That must mean they also own the right to dictate what she can and cannot say about them, right? (I'm thinking back to a similar case a few months ago. Typical comment: "It's all so simple, if your employer doesn't tell you to blog, don't. At least don't while mentioning your employer." Simple, indeed...)

But this just sounds less and less "right" and "appropriate" the more I think about it. After all, it's basically a logical progression from that to arguing that any corporate-specific information in her head should be restricted to use by Friendster, only. So that means that they can make a case for owning things she learned while working on that big JSP-to-PHP conversion that Friendster finished a couple of months ago.

In 2001, the Supremes handed down a ruling in Kyllo v. United States [250KB PDF] that found a scan of Mr. Kyllo's home using thermal imaging equipment to be an illegal search. It's the grounds that were interesting: It was found to be an illegal search because the thermal imaging device was not "in common use." If such devices had been "in common use", by the ruling, the "search" would not have been illegal.

In other words, once everyone knows that it's become feasible to search non-invasively, it'll be legal. Just like looking into open windows.

That's analogous to this situation in that, presumably, as soon as it becomes feasible to erase or otherwise control content in someone's brain, there will be corporate masters who regard it as their right to take that action when an employee is "discharged" -- or leaves voluntarily.

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