The Reformers' Trojan Horse:<br>Killing the Office Blogger

By Erick Posted in Comments (16) / Email this page » / Leave a comment »


Krempasky earlier made reference to a possible concession by the "reformers" in campaign finance reform. He retracted a bit realizing "that the current regs accept some unspecified amount of use - as long as it doesn't affect an employee's normal workload." The reformers know that and like the wording of the current regs allowing "occasional, isolated, and incidental" use of corporate facilities.

With respect, the reformers know they have a trojan horse on their hands that will, despite their denials, serve as a prophylactic to bloggers blogging from the office.

Read on . . .

As I pointed out here, the "occasional, isolated, and incidental use of facilities", 11 C.F.R. 114.9(a), means one hour per week or four hours per month.

"No," say the reformers. To their denial, let me point out why they are wrong.

The reformers premise their argument on the full text of the regulation.

As used in this paragraph, occasional, isolated, or incidental use generally means--


(i) When used by employees during working hours, an amount of activity during any particular work period which does not prevent the employee from completing the normal amount of work which that employee usually carries out during such work period; or


(ii) When used by stockholders other than employees during the working period, such use does not interfere with the corporation in carrying out its normal activities; but


(iii) Any such activity which does not exceed one hour per week or four hours per month, regardless of whether the activity is undertaken during or after normal working hours, shall be considered as occasional, isolated, or incidental use of the corporate facilities.

Well, here is why I say that is a trojan horse.

The reformers rely on 11 C.F.R. 114.9(a)(i), "When used by employees during working hours, an amount of activity during any particular work period which does not prevent the employee from completing the normal amount of work which that employee usually carries out during such work period." But, to say that will protect bloggers is disingenuous at best.

You know and I know there are many do-gooder groups out there that love to file FEC complaints. Notice that that between (ii) and (iii) there is that little three letter word "but." That "but" means "caveat." 11 C.F.R. 114.9(a)(iii) is a "safe harbor." As long as a blogger does not exceed one hour per week or four hours per month, they will be safe. But, what about two hours per week?

The reformers will tell you that as long as those two hours "[do] not prevent the employee from completing the normal amount of work which the employee usually carries out during such work period" the employee will be okay. Well, the next step then will be for the professional complaint filers, i.e. do-gooders a/k/a reformers, to speculate that the employer might just be cutting the employee slack on "the normal amount of work" because the employer agrees with the political views of the employee.

Not fair you say? Too big a leap? Well, consider this -- blogs usually have time stamped posts. A complaint filer can easily see that a blogger has spent more than one hour a week blogging during normal business hours -- thus reasonably probable that the blogger was blogging during work hours. The blogger then falls outside the safe harbor.

Even without the leap I might have made, if the blogger falls outside the safe harbor provision and a complaint is filed against the blogger, the burden will be on the blogger to show that (1) he was not prevented "from completing the normal amount of work" that he usually does during business hours and (2) will still most likely have to prove that his employer was not being lenient, which could get the business into trouble if it is a corporation.

For the blogger to answer this complaint, the blogger would need money to hire a lawyer. The blogger would probably also need a source of funds because his company would most likely fire him in an effort to show the company had no culpability for the blogger's actions.

The reformers can say they are open to blogging from the office. But their written words give lie to that. Unless "occasional, isolated,and incidental" is changed to unlimited, as Toner posited, bloggers will face the reformers' trojan horse and we will all be hurt because of it.

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The Reformers' Trojan Horse:<br>Killing the Office Blogger 16 Comments (0 topical, 16 editorial, 0 hidden) Post a comment »

and I mean no disrespect by anything I say here, but when you are at work, aren't you supposed to do work, not blog?  

I know, not all jobs are equally demanding and in many blogging is a real possibility. (heck, I used to play everquest at work..but I was just fulfilling required office hours as a teaching assistant)

Generally speaking, I would think that if you have time to spend more than an hour a week blogging then you probably don't have enough work to do, which may or may not be a fault of your own.  

That said, I would think that there are any number of ways to get around the 1 hour per week limit. One way is to just do a whole bunch of blog related research for posting later.  Another way is to type major idea posts somewhere else, Word or notepad for instance, and then cut and paste them so that it is possible to make multiple large posts within just a few minutes.  

Because in order to really enforce this, more organizations are going to have to start filtering traffic at the corporate firewall on Port 80.  My guess is that rather than overburdening their already overstretched IT departments, they will simply say:  "No internet weblog activity using work computers is allowed, period."  Most employees will get the message and blogging will disappear from the workplace, even if it falls within the safe-harbor exemptions provided by the FEC.  Employers aren't going to take the risk.  What they will do is crack down with an iron fist.  

Consider a professor at a private university, which is incorporated.  He's at his desk all the time, often working on his work but often blogging about politics -- which his school encourages because it brings prestige and attention.  Problematic?  Under the law, maybe.

I wonder who you could be referring to, there?  What if it's part of his job description...?

Because most of the lawprof bloggers are at public universities.

Consider this: if the employer were Apple Computer and they were encouraging particular employees to blog about politics from work, would you be concerned?

heh.

That said, universities should probably not rely on a blog for publicity and prestige...

To determine what the rules for their employees are regarding the use of computers for either reading and/or contributing to blogsites.  I'd like to see the FEC get their noses out of it to the greatest extent possible.  I can see that companies may very well want to restrict an employee at work from using a machine to talk about company secrets, internal emails, etc., etc., and I think those are legitimate concerns and are totally separate from the political blogosphere, because if a company secret or embarrassing tidbit is published on a blog that is run by an employee, most companies will be able to catch that pretty quickly and fire the employee.  Most companies probably don't have employees that disgruntled working for them in the first place, so it's a small problem.

BUT:  blogging about politics from work is a different story, and the scenario I imagine goes something like this:  Jane Employee chooses to eat lunch at her desk a couple times a week.  She packs a lunch almost every day, to save money because her mean corporate bosses don't pay her enough to eat lunch in the cafeteria and still afford the trip into work, so while she's sitting in front of her decrepit old Windoze machine and munching away on her carrot sticks and tofu, she likes to read a few blogs, occasionally contribute, and play Mahjong in another window. Jane is working her way up the ladder from the Assistant Assistant to the Project Manager's Gofer to one level higher than that, whatever it is, and to keep her mind sharp about what's going on in the world, so that she can talk intellgently with her immediate boss, she reads DKos.  Until now, her company has allowed this minor slackitude using her office computer.  They don't officially encourage it, but it's tolerated, and as long as it doesn't interfere with her gofer duties, they don't really mind.  

Now what happens is that these new regulations make her both a potential liability as a "blogger" much starker to her, and it also starts to worry the Assistant Project Manager, who also likes to play Mahjong and occasionally drops by to visit Jane, but isn't going to be very happy if any kind of disruption is caused when his cheerful gofer gets accused by Evil Republican Jim the IT Manager of abusing the safe-harbor exemption and blogging beyond the accepted limits.  It's particularly dangerous because, while Jane might only actually spend fifteen minutes composing blog posts, she might do them in bits and pieces -- all throughout the day, leaving her Firefox browser window open (Jim the IT Manager has insisted she use Internet Explorer but Jane is a silent rebel, you see.)

So what the Assistant Project Manager does is send a memo to the Assistant Director of Personnel, who forwards it up the chain, and then after a few milliseconds of debate, an order is promulgated to all employees in the organization:  "NO BLOGS ALLOWED. PERIOD.  THIS MEANS YOU, JANE."

This doesn't help Jane, it doesn't help the blog, and it worries me because I can see it happening pretty easily.  A formerly largely innocent activity that she used as a stress-reliever and a way to kill some time on her lunch hour (she occasionally goes over that, because she also just itches to finish a comment after 5pm..) is now officially verboten.  

Corporations are barred from making expenditures on behalf of candidates through their general proceeds.   So they shouldn't be able to circumvent those rules by encouraging their employees to use corporate resources (the phone bank, the xerox, the computers) to help preferred candidates, be it letting someone run off 10,000 copies of a pro-Bush flier or playing someone 80K/yr just to blog in favor of John Kerry.

Re:  Employers aren't going to take the risk.  What they will do is crack down with an iron fist.  

Unless they cut off intenet connectivity completely how will the employer be able to enforce that order?. Yes, there are filters that could be tuned to block certain sites, but that's going to be a pretty labor intensive endeavor too-- who's going to want to hire an IT guy just to scour the intrenet on a regular basis for political blog sites to filter? So that brings the company back to having to monitor individual activity, also very labor intense, and in no way profitable for the company to do. My guess is this regulation is inherently unenforeable and will be the most ignored federal law since the old 55 mph speed limit. After all, it's not like some external do-gooder group has any way of knowing where any of our postings are originating from, so who's going to blwo the whistle?

the difficulty.

Were I charged with doing this I'd sample internet use regularly, suspend or fire violators, and publicize the actions.

The IRS is doing this right now.

And the emphasis is on former, as I'm waaaaay out of date, even I could jury rig something to block all but certain kinds of sites. I know I could do this, because I helped create such a block at one of my former jobs.

is not a profit-making enterprise and as such does not care if it must allocate resources to non-productive activities like this. Businesses which must concern themselves with profitability and workplace productivity are going to think twice about spending money on this sort of useless activity. It's the same with a great many other federal regulations: as long as the infractions are not visible to external parties the regulations are mostly honored in the breach.

Because it was the best-fit manner in which they could keep monitoring for law breaking and comply with the overhauls of the late Nineties.

in and around different businesses than I. In most businesses avoidance of risk takes priority over most else. Any business that has a single HR person can do this.

And the other post I wrote was a little zany in terms of its scenario (and deliberately written from the perspective of a DKos poster for balance) but I've sat around the table in Administrative staff meetings where decisions like this get made  -- and if the people in charge feel the danger and the liability is real, they'll talk with their corporate counsel, and depending on how panicky the corporate counsel advises them to be, and how draconian their temperament is as an administrator, they can darn well make blanket pronouncements like that in order to avoid the risk.  In a heartbeat.  I've seen it done.  In the end, those computers and that network belongs to them.  If they want to crack down to prevent troubles either among and between their employees or because of them, they will.  I'm not saying it's a guaranteed result, but again, I've seen similarly draconian things happen.  It's something to be aware of.

I blog almost exclusively from work.  Why?  Because I have no work to do and I work in a service industry where all my hours are billed to one client regardless of the amount of work I actually do.  And if I don't blog to fill up my time I am going to go slowly insane as my mind deteriorates from sheer boredom.  (Doing nothing for 30 hours a week is a mental hazard.)I can't imagine that I am the only blogger who does this.  

But my company has absolutely nothing to do with what I post on my blog except for the occasional diatribe about what a dumbass my boss is. (No names of course)  So why should I be penalized for having nothing better to do with my time than argue about politics at work?  Because somebody somewhere is paranoid that I might disagree with them and that someone else might agree with me.  

And now I'm going to go home.

 
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