New Employment Discrimination Laws Would Nullify Online Defamation

Have you ever worried about a current or potential employer using the internet to research you? If you've ever applied for a job in the digital age you probably have, especially if anyone has ever written anything negative about you that can be found using search engines. Search engines can be gold mines of information whether it is true, false, relevant, or irrelevant because there are no laws on the books that prevent an employer from discriminating against current or potential employees based on what they find. New legislation could restrict the use of search engines and the internet as a whole in the hiring process using approaches consistent with existing legislation that has restricted the use of irrelevant information from other sources.

The Problem

We are going to focus on three types of content which typically result in websites being wrongfully blamed for bad hiring and firing decisions. That content comes from mugshot sites, complaints sites, and the mainstream press.

Mugshot Sites

Despite a slew of new legislation restricting the use of criminal background checks in the employment screening process, none of those laws restrict the ability of an employer to make decisions based on search engine results from mugshot websites. As a result, people were willing to pay hundreds of dollars per mugshot to remove them. This impacted millions of people in the United States alone which led to a slew of unconstitutional legislation aimed at restricting the use of mugshots and the ability to charge removal fees. Such laws are new and it appears mugshot sites are complying with them rather than launch constitutional challenges for the most part.

We are not going to spend too much time on the unconstitutionality of the state forcing people to engage in speech against their will (ex: updating an arrest record or removing a mugshot for free) or banning them from exercising free speech out of fear of being fined if they refuse to retract the speech later (ex: https://www.firstcoastnews.com/article/news/local/lawyer-says-florida-mug-shot-law-unconstitutional/77-e01adc94-61d7-4a78-b21e-2e059c22e848). We do know that the best argument states can make to justify restricting mugshot publication is based on the mugshots themselves originating from public records and using that origin to exert jurisdiction over the use of public records. For example, Ohio criminalized charging fees to remove or update arrest records by categorizing it as misuse of a public record (https://codes.ohio.gov/ohio-revised-code/section-2927.22) and some states have banned law enforcement agencies from releasing them. Another option that has been thrown around would involve the government to file copyright claims against mugshot sites.

Even if mugshot removal fee prohibitions survive First Amendment challenges long term, they do nothing to prevent someone in another country from creating a mugshot site and charging removal fees. The United States government has zero authority over computers in other countries. This is something we've found useful in the past when operating a website in violation of a federal court order. In that case our founder was held in federal custody on a charge of violating a condition of supervised release in an unrelated matter and the judge ordered him to stop running his website from jail as a condition of his detention. The judge was upset over the site being used to post home addresses of law enforcement officers, prosecutors, and judges, as well as our founder threatening to do the same thing to anyone that wrote him up for violating jail rules. He simply ignored the judge and continued operating as usual while the government was powerless to take the site down due to it being hosted in foreign country. If mugshot removal laws survive American courts they will only create new opportunities for foreign web developers and domestic developers willing to break them.

Google has taken steps to suppress mugshot websites despite the damage it does to their core product. It is hard to think of a more useful and relevant result for someone researching a person than an accurate arrest record. Google claims their mission is to organize the world's information and make it universally accessible and useful. Any decision by Google to suppress information they deem "too useful" harms the overall user experience and drives users to other search engines (ex: https://vocal.media/01/how-bing-became-the-premier-background-check-search-engine). Google suppression has also been found to be circumventable.

Complaints Sites

Complaints websites have been in the news and targeted by Google lately for reasons similar to mugshot sites. They contain information that hiring managers find too useful, but unlike mugshots the complaints are often found to contain false accusations. Unlike mugshot sites which provide employers with a way to get around background check restrictions, complaints sites open up a new arena where any accusation no matter how baseless can come into play. This leads people to blame complaints sites for costing them jobs based on lies, but the real people to blame are those responsible for making hiring and firing decisions. We cannot think of a more incompetent way to vet applicants than going Bing or Google, searching a name, and acting solely on what is found. Right now people are trying to find ways to silence complaints sites, but their efforts face more hurdles than mugshots do.

The government cannot claim a nexus to content creation with complaints sites like they can with mugshot sites. That means that they cannot ban complaints sites from charging removal fees by calling the practice misuse of public records. They also cannot regulate the dissemination of information from the source because they cannot control private citizens the same way they can control the ability of law enforcement agencies to release mugshots. They also cannot require complaints sites to remove content upon request like they can with mugshot sites because there is no public nexus.

If a state were to enact a law prohibiting any complaints website from charging a fee to remove content for any reason it would clearly violate the First Amendment. It would constitute a form of forced speech in which people could no longer condition their engagement in optional speech (removing content) by being compensated for their work. It would be like telling a public speaker that they couldn't charge a fee for giving a speech. Even if a speech is being given to correct errors made in a prior speech, the speaker can still charge a fee. When a website operator chooses to remove content they are engaging in a form of protected speech. Everyone has the right to condition future speech on being paid.

Requiring website operators to remove or correct user generated content within a specific time frame or face a fine would also be unconstitutional. Such a law would constitute a form of prior restraint which would likely cause website operators to abstain from engaging in protected speech (ex: allowing users to post or using automated means to share user generated content) out of fear of being fined or suffering hefty judgments against them if they didn't have time to respond to complaints within the time frames. It would also cement the near monopoly big tech has over social media. Companies that can afford to hire armies of moderators would remain in business while small ones unable to hire moderators would be forced to choose between bankruptcy and willful non-compliance. We would of course choose the latter, but most others are run by lames too terrified of the government to resist them at all.

People keep suggesting that amending Section 230 of the Communications Decency Act would force website operators to stop charging fees to cover moderation expenses and/or force them to take unverified accusations down quickly. Section 230 provides a legal shield which keeps courts from being able to treat online platforms as the speaker for content created by others. Proponents of Section 230 destruction claim that the platforms would then be responsible as the speaker, but they fail to consider the First Amendment right speakers have to quote other people accurately. If a journalist goes on TV and quotes another person accurately they are not at fault if that quote contains false information. If Section 230 were repealed it wouldn't likely cripple complaints sites as long as they have a disclaimer clearly stating that statements made by third parties are nothing more than the accurate quotation of third parties whose statements should not be believed without further investigation. For instance, if Section 230 did not exist and we were sued for libel based on a user's false statement, we would defend it as being the accurate quotation of a third party with notice that it might not be accurate. Section 230 was passed to enable sites to moderate content without having to worry about being treated like an author after some internet companies decided not to moderate content at all to avoid being held liable for moderation decisions (https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.). When restrictions were placed on mugshot removal fees many mugshot operators stopped removing anything at all. The same happened the last time our founder was in jail.

If a court refuses to uphold our rights again we will not legitimize that court with our cooperation. We will refuse to remove anything, refuse to pay any judgement, and refuse to pay contempt fines. We will utilize a network of offshore bank accounts to render judgements and fines uncollectable while at the same time utilize a network of offshore servers to make it impossible for the government with the full support of its courts to render them inoperable. Since our trial run involved our founder operating a website from a jail cell, we are confident in our claim that the government is powerless to stop us without our cooperation. We are willing to offer our cooperation in some cases such as content we believe contain claims which have been proven false, but other than that we will uphold the right of our users to exercise their First Amendment rights without being censored every time they cannot prove their claims. The internet is not a court of law, there is no burden on an accuser beyond claiming that they're telling the truth, and the state could never require that online authors meet a burden without violating the First Amendment. Likewise placing a burden on service providers to require users to prove claims would also violate the First Amendment. In the event that state actor violates their oath to uphold the Constitution we are prepared to deny them the fruits of their efforts while we wait for the courts to correct the error. If that must be done from a jail cell then nobody will be able to remove anything at all.

Since it is clearly not possible to shut us down without violating the Constitution, we are prepared to operate if those charged with upholding the Constitution violate their oath, and make life difficult for those in government that violate their oath, trying to use the legislature to our detriment is not a good idea for anyone. An better solution must be found.

Fake News

There is a lot of real news out there (ex: sports and weather), but the types of news that impacts hiring decisions is mostly fake. News about crime, politics, or even business is almost always biased one way or the other.

Crime stories which almost always have a negative impact for people arrested down the road are almost always completely one sided. The news will base their initial coverage based entirely on statements made by police officers and prosecutors. They are nice enough to cite their sources with phrases like "according to officers" or "prosecutors allege" but that does not stop people from forming conclusions based on it. In every criminal proceeding the government says one thing, the defense says another, and 99% of the time the truth is somewhere in between. You wouldn't know that from reading the news. Usually the news covers an arrest and never covers the case again. There might be coverage of a trial or a sentencing that includes both sides, but even then it is so favorable to the government that you are always guilty until proven innocent in the eyes of the media. Government websites add to the problem by issuing press releases which people think are credible because the mainstream press and search engines treat them as the most credible sources of information on the internet despite almost always being bias with false information.

Politics takes things to a whole new level with the so called "truth" being a reflection of whatever ideology the outlet plays to most. For instance, when Kyle Rittenhouse shot three people in self-defense in Kenosha, Wisconsin last year you wouldn't know it by watching CNN because CNN was quick to call him a domestic terrorist and throw up smoke screens to keep people from realizing that he was running for his life. Fox News of course was quick to support the truth in that case because it favored conservatives, but when the shoe is on the other foot they are quick to paint leftist as terrorists. The same is true for the rest of the mainstream press.

When it comes to business there are often a lot of positive stories which can be good for peoples' professional careers, but they are often biased as well because professionals often put out positive press releases about themselves. If a positive press release is picked up as a story with little or in some cases no fact checking then the author of the release often reaps the benefit of his own manufacture positivity. Those that make hiring or firing decisions based on misleading positive stories can be just as likely to make the wrong decision as the ones basing it on negative stories. That is why we almost always recommend press release marketing campaigns to our reputation management clients.

The mainstream press supposedly holds themselves to the highest standards when it comes to fact checking, but they still screw up so often that they cannot be relied on. If you can't even trust the mainstream media to give you accurate information then why should you believe anything your read on the internet at all?

The Solution

The solution is to regulate what goes on at the other end of the connection when that other end is in the United States. If any person in the United States is making a hiring or firing decision they should not be allowed to discriminate based on internet searches. If they make an adverse decision based on an internet search they should be fined and exposed to tort liability for unlawful discrimination. The penalties and mechanisms for relief should be the same as they are for other types discrimination. Doing such a thing would be consistent with recent discrimination laws targeting other types of information and such things would be more enforceable than censorship.

The federal government as well as most states have restrictions on when an employer can conduct a background check and how the results of that check can be used. Unfortunately, employers can often learn the same types of things and more using internet searches. According to NOLO:

"The Fair Credit Reporting Act (FCRA) applies whenever an employer hires a third party to run a background check on a job applicant. Among other things, the employer must obtain the applicant's written consent and provide written notice if it plans on rejecting the applicant based on the contents of the report. However, if applicants refuse to consent to the background check, the employer can take them out of the running for the job." - https://www.nolo.com/legal-encyclopedia/washington-laws-employer-use-arrest-conviction-records.html

Unfortunately, the FCRA does not apply to employers using the internet to conduct background checks themselves. It also does not require written permission from the applicant before an online search can be conducted and the employer never has to tell the applicant in writing why they didn't get the job. If the FCRA were expanded to include background checks conducted by employers themselves and online searches that by itself would decrease the number of people denied employment due to negative online articles. Asking for permission to do an online search would give people the opportunity to explain what the employer is likely to find and that opportunity would likely result in employers learning that negative articles are unverified. On top of that many employers would not want to make themselves look incompetent by putting in writing that the reason they didn't hire somebody was because of an unverified article.

Expanding the FCRA would not be good enough, but some states have laws that could serve as a road map for banning employment decisions based on online searches entirely. In the state of Washington it is unlawful of an employer to ask an applicant if they have a criminal record unless they are otherwise qualified for the job. The city of Seattle goes a step further by requiring that employers "have a legitimate business reason to deny a job based on a conviction record" and "Requires an opportunity for an applicant or employee to explain or correct criminal history information." (https://www.seattle.gov/laborstandards/ordinances/fair-chance-employment). The next logical step to ensure that hiring practices remain fair is to treat online background check no different than criminal background check.

There would of course remain the risk of employers disregarding the law, do online searches anyway, and move on to the next applicant without explanation or just make up some legitimate sounding reason to deny someone a job.

Conclusion

The full weight of Congress and the rest of the government could not succeed at censoring the internet no matter what laws they pass or how they enforce them. The Constitution strictly prohibits almost every form of censorship and even if the government were to find a way around that the international nature of the internet only creates opportunities for others in cases of insufficient free speech protection in America. The best way to protect Americans from being discriminated against in the hiring process based on false information found online would be to ban employers from making hiring or firing decisions based on internet searches.