Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney



Microsoft Bans “Offensive Language” from Skype

Update to the Microsoft Services Agreement E-mailThis morning, I got the kind of e-mail that most of us ignore: “Update to our terms of service” from Microsoft.  But I love waking up to read a good contract in the morning, so I had a look at the summary of changes to the “Microsoft Services Agreement,” which applies to things like Skype, Office 365, OneDrive, and a whole list of other services.  The summary turned out to be a 27 bullet point document of mostly bland changes — except for point 5:

5. In the Code of Conduct section, we’ve clarified that use of offensive language and fraudulent activity is prohibited. We’ve also clarified that violation of the Code of Conduct through Xbox Services may result in suspensions or bans from participation in Xbox Services, including forfeiture of content licenses, Xbox Gold Membership time, and Microsoft account balances associated with the account.

Looking through the full text of the new agreement, I found the relevant change in Section 3(a)(iv):

Don’t publicly display or use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).

So wait a sec: I can’t use Skype to have an adult video call with my girlfriend?  I can’t use OneDrive to back up a document that says “fuck” in it?  If I call someone a mean name in Xbox Live, not only will they cancel my account, but also confiscate any funds I’ve deposited in my account?  (And are we no longer allowed to shoot people in Call of Duty?  Animated violence doesn’t really get any more “graphic” than this Microsoft-approved video game offers.)

And how are they going to enforce this ban?  Are they going to be looking through my Skype sessions?  Section 3(b):

When investigating alleged violations of these Terms, Microsoft reserves the right to review Your Content in order to resolve the issue.

Got it.

What’s clear here is that Microsoft is reserving the right to cancel your account whenever they feel like it.  They do nothing to define “offensive language” (or “graphic violence,” for that matter) and in 2018 when anyone can be offended by anything, these terms allow Microsoft staff to play unrestrained censor if and when they choose.  Given that Google’s YouTube uses that power to remove politically “sensitive” videos (like those on legal firearm modifications), should we expect that Microsoft will also be removing content and users to earn PR points with the politically correct movement du jour?

What’s also clear is that they reserve the right to go through your private data, and these terms seem to pretty clearly allow them to watch and listen to your Skype calls, so long as they are “investigating” something.  The terms don’t appear to require any complaint to be filed against you — just that an employee decide that they want to “investigate.”

I’ll be setting my Skype account not to renew itself.

[Update 1 – Welcome to those new to the blog!  Professional Troublemaker primarily focuses on civil rights issues, especially privacy rights, and you may recall my work publicly embarrassing the TSA for their flawed body scanners and other failures.  If keeping our government — and occasionally large corporations — in check when they refuse to check themselves interests you, please hit that Follow button at the bottom of the page or follow on Twitter!]

[Update 2 – I’ve been banned from Reddit’s /r/Microsoft for sharing this story…

Banned from /r/Microsoft

Is It *Really* Impossible To Get A Gun License in NYC? (Part VI — N.Y. Appeals Court Not Interested in Ending NYPD Corruption)

This is the sixth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete).


Courtroom at N.Y. Appellate Division, First Department
This is seriously the courtroom. Budget for stained glass dome? Yep. Budget to notify litigants when their cases are scheduled for oral arguments? Eh, that sounds pricey.

A few weeks ago, I checked the calendar of the N.Y. Appellate Division, First Department, and noticed my gun licensing case — challenging the constitutionality of allowing the NYPD to decline licenses for failing to provide a “good reason” to grant them amid a plague of cash-for-licenses corruption scandals — was scheduled for oral arguments.  In any other court, I’d have received an e-mail or a letter noting the request for my presence, but apparently the First Department doesn’t roll that way.

Oral arguments in appeals are a fun exercise.  Appeals are 95% done in writing (“briefs”), and oral arguments are usually at the discretion of the court.  By the time oral arguments, if granted, come around, both sides have had their full say on paper.  And, in theory you come prepared with an argument, but about 15 seconds after you open your mouth in front of the group of judges looking down on you, you’ll hear, “Counselor, …” followed by continuous questions for the rest of your allotted time.  And, these questions are no softballs: they almost exclusively ask you about the parts of your brief that they feel were, well, less than convincing.

So, while it is a surprise that the court has the technical capacity to live stream the arguments, it’s no surprise that they didn’t go easy on me.  But one thing I did find a bit unusual: the judges had no interest in hearing the corruption aspect of the case:

Jon: I’m asking for two things in this case: number one, for the court to end a 100-year tradition of corruption in the NYPD licensing division…

Justice Gesmer: I don’t see how that issue is before us.

Jon: Your Honor, the issue was thoroughly briefed.  Essentially…

Justice Gesmer: Well I understand it’s briefed, but there’s no factual record before us.

There’s no “factual record” — that is, evidence presented in the lower court — at all, because the lower court dismissed my petition before any fact gathering could take place.  The record from the court below is literally just the City’s motion to dismiss, my opposition to that, and the rubber-stamping of that motion in one of the most poorly written opinions I’ve personally had issued against me in nearly a decade of litigating civil rights issues.

The correct decision for the Appellate Division would be to remand my case to the lower court to develop that factual record.  I’ve properly alleged a denial of due process (an official who takes bribes clearly cannot adjudicate fairly), and I should be entitled to prove it, via a period of discovery where I can depose the officers of the licensing division.  But realistically, I don’t expect any relief from this court.  The decision from this court may take a couple of months, and then in all probability it’s on to New York’s highest court, the Court of Appeals.

Cancun Airport Attempts “Man-in-the-Middle Attack” On Web Connection

Warning: This post is technical.  The non-technical tl;dr is that the airport lounge network in Cancun attempted to hack my Internet connection to work.

Mera Business Lounge @ CUN AirportIf my flight is in the evening on a weekday, I’ll often show up at the airport early, work from the airport lounge, and catch my flight.  They tend to have reliable Internet, I get to spend the day eating and drinking for free, and I don’t have to worry about traffic or making my flight on time.

I sat down in the “Mera Business Lounge” in CUN’s Terminal 3 last week and went to log into my work server via “SSH” — a secure protocol commonly used to interact with Linux computers — and was somewhat surprised to see this:

$ ssh -i xxxxx jon@ (not the actual address)
Someone could be eavesdropping on you right now (man-in-the-middle attack)!
It is also possible that a host key has just been changed.
The fingerprint for the RSA key sent by the remote host is

No big deal — I assume someone at work has just changed around something on the server, like the message suggests after the scary warning part.  But, nonetheless, my standard practice is to connect to a VPN and repeat the attempt.  This mitigates any man-in-the-middle attack on the local side of the network, because although an attacker might be between Cancun and my work, if I have a VPN provider attempt the connection for me, the attacker no longer sits in the middle.  If the VPN attempt reports the same key mismatch, it’s probably not an attack.

Well, with VPN enganged…

$ ssh -i xxxxx jon@
Welcome to Ubuntu 16.04.3 LTS…

I actually couldn’t believe it, so I disconnected from VPN, repeated, re-connected to VPN, repeated.  Same result: fingerprint mismatch, no fingerprint mismatch.

A lookup of the external IP address of the lounge showed the network was run by an ISP called “G TEL” —

% Joint Whois –
% This server accepts single ASN, IPv4 or IPv6 queries

inetnum: 148.243.37/24
status: reallocated
owner: G TEL Comunicacion, S.A.P.I. de C.V.
responsible: Sergio Antonio Bravo Garcia
address: DR. ATL, 2084, Int. 606, Zona Urbana Rio Tijuana
address: 22010 – Tijuana – BC
country: MX

I attempted contacting their LACNIC point of contact and the standard “abuse” e-mail address, but received no reply as of the date of this article.  It’s unclear whether the attacker had access only to the airport lounge local network, or was at G TEL, or somewhere else on the Internet. I also have no reason to assume that I was targeted specifically (instead of, say, targeting everyone who was on the network). But it’s clear that my connection was indeed attacked.

Watch yourself out there!  While “sophisticated” attacks like MitM are uncommon for the everyday Internet user, they apparently happen.  If you ever see those “certificate not valid/trusted” warnings, take them seriously, and understand that if you proceed, any credentials that you’ve put into that Web site — in the future or in the past, as they’ll be taking your authentication cookies — are now in someone else’s hands.

Full session…

MitM Attack @ CUN

Turkey, Poland Compete To See Who Can Fuck Free Speech Harder in 2018

Let’s meet our contestants in this race to the bottom!

Only terrorists would use this!

Weighing in at 83 million residents, Turkey has decided to make the downloading of a messaging app illegal, with possession of it subjecting the thought criminal to prison time, loss of employment, and social scorn for being a terrorist.  The app is called ByLock, and it’s basically a watered-down version of WhatsApp that has now reached over a million downloads (wow, that’s a lot of terrorists!).  The reason this app earned contraband status was because an opposition political party movement called Gülen allegedly liked to use the app to communicate.

Weighing in at 38 million residents, Poland has a pet peeve.  You see, some people have been referring to Nazi concentration camps that existed in Poland during World War II as “Polish death camps.”  Poland takes umbrage at this depiction because, while there were indisputably death camps in Poland, they were not “Polish;” they were German.  So the correct way to handle this situation is not to educate the public but to criminalize the stringing of 3 words together.  Those who use the term “Polish death camps” instead of “death camps in Poland” will be subject to a 3 year term in a Polish death camp — er, I mean, prison.

Polish Death Camp
This is a Polish death camp

The scoreboard stands as follows:

Turkey’s measure is specifically intended to stifle political dissent, which earns them 12 points.  They also earn 5 points for futility, since there’s no special technology behind ByLock and dissidents could simply switch to virtually any messaging app.  They earn 3 more points for accidentally arresting over a thousand people who were mistakenly thought to have downloaded the app.  They earn 1 more point for being ignored by the mainstream media until they accidentally arrested the wrong people (apparently it wasn’t enough of a story when they arrested actual users of an innocent messaging app to silence political dissidents).  And they earn 2 more points because Turkey’s President, Recep Tayyip Erdoğan, smells of bad döner.

Poland gets 6 points for the stiff prison sentence for such a subtle linguistic nuance.  They get 2 points for criminalizing the saying of something for no other reason than that it embarrasses them.  They get 5 points for using the Holocaust as an excuse to be authoritarian.  They get 2 more points for criminalizing something Barack Obama once did.  And, I give them 3 points for being a secular, democratic nation from which we should be able to expect better.  But, I deduct 2 points for pissing off Israeli Prime Minister Benjamin Netanyahu, who puzzlingly equates this with Holocaust denial (no Ben, it’s not Holocaust denial, it’s just stupidity and thuggery).

That’s 23 points for Turkey and 16 points for Poland so far.  Let’s see if Poland can catch up, or perhaps another country will join the battle, which is traditionally initiated by having the country’s leader get on Twitter and announce their candidacy using the hashtag #HoldMyBeer.

Rich People Skip TSA Body Scanner, Get PreCheck Access at JFK Thanks to AA “Flagship First” Entrance

AA Flagship First Dining
The menu I received for the “free” restaurant access with AA Flagship First

I don’t often purchase full-fare first class tickets, and at the beginning of the year I switched loyalty programs from American to Delta after merging with US Airways caused AA’s service to plummet (hey, who could have predicted that merger would hurt consumers?!).  So I’ve never had access to AA’s Flagship First program before, which entitles guests to ultra-premium lounge access, including no-charge “fine dining,” and a special airport entrance, for those flying in first class direct between JFK and either LAX or SFO.  But, I had some AA miles to burn and booked the flight for today.

You’ll imagine my surprise when I walked through the VIP entrance and was immediately placed in the PreCheck queue.

TSA PreCheck is designed to allow people to submit to a background check and thereafter skip the most invasive of the security the TSA imposes upon us — including the nude body scanners and full-body pat-down.  The idea is that passengers can be pre-screened to ensure that they are less of a security risk and thus it becomes unnecessary to use normal security practices.

The wisdom of PreCheck not withstanding (it relies on the premise that the government can predict who is a terrorist and who is not, a premise that I’m not sure is founded), the program is entirely undercut if one can get PreCheck benefits by splurging about $1K (or 50,000 AAdvantage miles, in my case) on a premium ticket.  American Airlines and the TSA are literally allowing flyers to buy their way out of security procedures.

In the meantime, your 80-year-old grandmother is still getting rubbed down for weapons and your 2-year-old’s baby bottle is still being tested for explosive residue.

Anything for our profits safety, right?


Twitter to Ban Users Who “Affiliate” With Organizations That “Promote Violence”

Twitter is a private company that has a right to allow and to ban whatever speech they would like on their platform.  But its users also have the right to call them out on using that power to silence debate.

Twitter has announced that starting December 18th, they will not allow users who “affiliate with organizations that … use or promote violence.”  They make clear that it matters not whether the organization is allegedly violent “on [or] off the platform,” and do not define “affiliate” or “violence:”

Twitter's New Policy

Source: Twitter

This leaves open a lot of important questions:

  1. What counts as a “violent” organization?  Does Black Lives Matter fit?  What about “alt-right” protesters?  Does the group need to be “illegal?”  (Under which jurisdiction’s laws?)  What about groups fighting for active revolutions (and does it matter if they are oppressed peoples fighting against an abusive government)?  They do say the ban is limited to “violence against civilians,” so maybe it’s ok to call for the death of U.S. soldiers?  What about violent governments?  Are we taking a side on the Israel-Palestine issue?  What about violent individuals who don’t really have an organization — or are in a loose, decentralized group like “Anonymous” — but want to see the world burn?
  2. What does it mean to “affiliate?”  Do I need to be a card-carrying member?  A leader of the organization?  Or is just posting, “I support X” somewhere on the Internet good enough?  What about mere sympathy, even if I expressly state that I am not a part of the group?  What if I support their philosophy, but not their violent means?  Will promising that I don’t — or no longer — belong to the group get me un-banned?
  3. How will Twitter be tracking affiliations assuming users don’t announce them overtly on the Twitter platform?  Will it be looking through other social media platforms?  Will it use tracking cookies to ban people who visit certain Web sites?  If I “Like” or “Re-Tweet” something verboten, is that enough?

It makes sense that Twitter doesn’t want to be a platform for terrorists to spread their message (even though promoting foreign interference into U.S. elections is no problem for them).  So why not say that, and do that, instead of changing your terms to something entirely amorphous with vague insinuations of an intent to play Big Brother?

YouTube Removes Gun Videos Showing Legal “Bump Stocks” After Vegas Shooting

I wouldn’t call myself a gun expert, but I am pretty familiar with gun laws and what may be legal to own in the United States versus what isn’t going to fly anywhere in the country.  After watching a couple of videos from the saddening incident in Las Vegas last week, I hypothesized on a Facebook post that the shooter probably had a “bump stock,” along with a YouTube video I found demonstrating the device:

The Bump Stock Hypothesis

My hypothesis — based on the rate of fire I could hear in the videos and knowledge of the difficulty any civilian in this country would have obtaining a real machine gun — was confirmed after photos leaked from the shooter’s hotel room.

If you’ve not yet become familiar, the “bump stock” is a legal rifle modification that is just two pieces of plastic with a spring between them.  The spring allows the trigger to release itself using the kinetic energy of the gun, allowing for the firing of the next round far faster than would be possible by manually releasing the trigger.  They are sold for as little as $100, and some gun enthusiasts have pointed out that with practice, you can use your shoulder like the spring and get faster rate of fire even without the $100 mod.

But when I went back to the video that I had posted, I got the following message:

YouTube Gun Censorship

YouTube, it seems, has now decided that videos showing perfectly legal guns in perfectly legal ways are “harmful or dangerous content” that violates its content policy.  People shooting real machine guns can still be found all over the site, and indeed, they haven’t gotten around to banning all the videos yet, but several of the videos that had been around for years have now disappeared.

I’m apparently not the only one who noticed.

I must assume that reason behind this is to make a political statement in favor of gun control, but why?  Watching videos of bump fire in action is pretty shocking when you’ve never seen it before, and if anything, I’d expect it would prompt the public to call for their immediate ban.  Google has, quite simply, taken it upon itself to impose its morals on all of us and to deprive the public of information.  Given the control over the Internet that Google has, I think we have a right to demand some objectivity rather than moderation practices based on emotions and feelings.


What Are My Rights at Large Festivals? (Am I Going to Jail for Weed & Prescriptions at Burning Man?)

Burning Man LoveKnowing that I’ve been in civil rights advocacy for 7 years and I’m now finishing law school, I get a ton of questions from friends about legal issues.  Being that Burning Man festival happens in 2 weeks, this month I’m inundated with, “Will the cops on the Playa care about x, y, z,” and reading a ton of material from other sources misstating the law (sadly, sometimes even the official correspondence from Burning Man gives inaccurate advice).   The answers to these questions mostly apply to many kinds of festivals, so rather than respond individually, allow me to share my collective thoughts regarding the common themes here:

  1. Can I get arrested for smoking weed on the Playa?  Yes.  Nevada made recreational marijuana legal effective July 1st, 2017, but federal law still prohibits possession or use of the same.  So, state cops are not going to be citing you if you’re in compliance with the law.  So what’s the problem?  Two things.  First, Burning Man is held on federal land.  There are federal law enforcement — Bureau of Land Management Rangers — all over, and although some might look the other way, it’s no guarantee.  Second, smoking marijuana in public in Nevada is still illegal.  Whether being in a tent qualifies as being in your home for the purpose of Nevada’s marijuana laws is not a question that has yet been answered, but you definitely do not want to be caught walking around with a lit joint.  You should be especially careful if there are children around, as there are at Burning Man during the day — it is unlikely a cop will “look the other way” if you’re getting high next to a kid.
  2. I heard that if one person is doing drugs, they can search the whole camp!  No.  An officer needs probable cause to conduct a search, a standard which means that a person of reasonable prudence would believe that you were committing a crime.  Case law is quite clear that standing next to a person committing a crime — let alone owning a tent 100 feet from them — is not, by itself, probable cause.  But, know that law enforcement is known to coerce consent to search.  How do you respond to, “I just caught your campmate smoking weed, now open your tent or I’m bringing the dogs!”  Easy: “I’m sorry but I don’t consent to a search.”  Let them bring the dogs if they must (they will probably get bored before that time, and your defense attorney would much rather challenge a dog search than your consent), but do not ever consent to a search, whether you are doing something illegal or not.  Likewise, if you’re cited or arrested out on the Playa, you have no obligation to tell them where you’re camping, and I suspect your campmates may prefer if you don’t.  Do not lie to the police on the Playa — if they are federal law enforcement, lying to them is a felony! — but why invite them back to your house?  Instead, “I’m going to exercise my right to remain silent” is a good response (and then do the remaining silent part!).
  3. What about prescription pills?  They’re fine.  And despite what this morning’s e-mail from the Burning Man said (“If you use prescription drugs, they must be in the prescription bottle or container you receive from the pharmacist at all times”), I was able to find no part of Nevada’s Controlled Substances Act that requires you to do this, and at least one state that has tried to legislate a “must be in Rx bottle” requirement has found their law declared unconstitutional.  But, here’s the thing: having a baggie full of pills may be evidence that you intended to distribute them.  It’s not enough on its own, but I would not recommend getting 10 little baggies, putting 4 oxycodone pills in each of them, and carrying all 10 baggies with you while walking around the Playa.  You’ll look like a drug dealer, and at the least give them reasonable suspicion to question you.  But, if they are legitimately prescribed to you, in the end, you’ve committed no crime, and carrying one of your Xanax in your pocket in case you need it is, as best I can tell, fully legal in Nevada.
  4. Anything else I should worry about?  Yep.  Here’s where people most frequently get in trouble:
    • You won’t get in with: stowaways, fireworks, lasers, styrofoam coolers, pets, plants, and guns (lol at this morning’s e-mail stating there are no “weapons” allowed… anything from knives to flamethrowers is not a problem; the only prohibition is firearms).  The Burning Man staff (not the police) will ask to do a quick look in your car for any of the above on the way in, and you’ll be turned away from the gate if you refuse.
    • Don’t drive like an asshole (don’t drive on open Playa without a mutant vehicle permit, don’t exceed the speed limit, don’t drive while drunk, don’t drive during a dust storm).  It’s weird driving for miles at 10 MPH on gate road, but do it.  Going faster will also screw up your car and create massive dust clouds for everyone else.
    • Use intoxicants responsibly.  Drugs are bad, I hear, but doing them out in the open is just plain stupid, and the police have binoculars and night vision goggles.  They’re also known to go undercover and ask for drugs, so don’t think it’s cool to “gift” them to the cute girl you just met — she may (seriously) be a cop.  Know your limits and don’t get so obliterated that you need medical attention.
    • Mind the children.  Keep anything adult-themed away from the daytime view  of passers-by.  Drinking age is 21 (yes, there are undercovers for that too).  Age of consent is 16.  Most law enforcement on the Playa most (but not all) of the time is fairly relaxed, but if you screw up anything in this section, you’re gonna have a bad time.
    • Ask for consent.  Boobs do not mean “yes.”  And same goes for women… don’t think you get a pass because you’re a girl.  People verbally asking “Can I touch your ___?” or “Can I kiss you?” is common and appreciated by most.  Take the opportunity to go the extra mile to ensure that you’re respectful of people, and also take the opportunity to respectfully educate those who don’t get it.

Have fun out there, guys!

Did Google Break the Law By Firing Employee Who Questioned Diversity Groupthink?

women_in_techLast week, a Google employee wrote a document entitled, “Google’s Ideological Echo Chamber,” and posted it to an internal discussion group promoted as a place for Google employees to advocate for internal changes.  (Full text including sources and hyperlinks present in original.)  I encourage you to read the full 3,000 word document, but I think a fair summary of the author’s position is as follows:

  1. There have been studies that show that, statistically, there are some psychological traits that are more likely to occur in men than in women, and others more likely to occur in women than men.
  2. These psychological differences may be at least partially the reason for the disparity between the number of men and women in the tech field, which has been dominated by men for decades.
  3. Google’s corporate culture pretends to solicit diverse viewpoints from its employees, but a viewpoint that reflects the points above would be frowned upon.
  4. Some of Google’s diversity programs are not the best approach, specifically including: a) training for women and minorities to the exclusion of white men, and b) a requirement that team composition include a quota of women and minorities regardless of whether the composition of the available qualified resources matches that quota are not.

The document was promptly leaked to the media by employees who were offended by its contents, and the author was subsequently fired for “perpetuating genders stereotypes” — perhaps proving point #3.

As a man who has spent much of his life working in tech, I have had occasion to notice that there aren’t as many women, e.g., in the Comp Sci classroom, on the IT helpdesk, or a part of the remote software development team, as there are men.  Frankly, I’m not sufficiently educated on the subject to have an opinion worth sharing as to why that is.  Sexism is certainly a real thing that still happens, although I suspect that the full explanation is a nuanced issue with more to it than any brief explanation can offer.  But, I am also troubled that the media reporting on the document in question immediately labeled it an “anti-diversity manifesto,” despite the author literally saying “I strongly believe in gender and racial diversity” as one of his key points, and I am troubled that Google would create a forum for people to express constructive criticism and then fire an employee for doing so in a way that doesn’t match Google’s (and Silicon Valley in general’s) political ideology.

Anyway, you came to this post because I do happen to be educated on the law.  Having made national attention, this guy now has lawyers knocking down his door to take the case because doing so is good publicity for them, win or lose.  Assuming he retains one of them, will he win in largely at-will California?

Some arguments he can make:

  1. California prohibits companies from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees.”  Cal. Lab. Code § 1101(b).  I think there’s no doubt that the subject matter of the memo was a “political issue.”  Google has a reasonable argument that they didn’t fire him for his position on this political issue, but for expressing it at the workplace when it violates their code of conduct.  But, the counterargument for that is that Google created this forum for its employees to speak freely, and then punished him for what he said.  If he can show that others have posted political opinions from a different viewpoint that have gone unpunished, it can very much be argued that Google at least tended to control political activities or affiliations.
  2. California prohibits companies from retaliating against an employee who publishes information that he or she “has reasonable cause to believe that the information discloses a violation of state or federal statute,” so long as he does so to the government or to a supervisor.  Cal. Lab. Code § 1102.5(b).  Among many other things, the memo alleges that Google’s diversity programs “incentivize illegal discrimination,” which would violate both state and federal law if true.  Let’s assume he has reasonable cause to believe that.  Google will argue that: 1) his 3,000 word memo said many things, and he was not fired for the small comment about incentivizing discrimination, but rather for his hypothesis that biological gender differences, and not sexism, are responsible for the gender gap in tech.  They may also argue that publishing to this forum doesn’t count as disclosing to a supervisor.  I think Google would fail on the first argument, but prevail on the second.  He can reasonably argue that the other 2,997 words were background to his claim of discrimination, but cannot reasonably argue that submitting his feedback to the entire company, rather than to his boss, was the right way to provide that feedback.  But, I will note that the law provides that “the employer shall have the burden of proof.”  Perhaps not a risk worth taking.
  3. Federal law allows employees to complain to each other about workplace conditions without fear of retribution, as long as it is a “concerted activity” for “mutual aid or protection.”  29 U.S.C. § 157.  What do these vague terms mean?  Well, the agency in charge of enforcing this statute, the National Labor Relations Board, takes a broad view: “Examples include: talking with one or more co-workers about your wages and benefits or other working conditions…”  This clearly applies to the situation, and it matters not whether the state is at-will or the employees are in a union.  There’s just one catch: “However, you can lose protection by saying or doing something egregiously offensive…”  Google will obviously argue that the employee’s memo was egregiously offensive, but given the civil tone of the memo, even if some (even many) people found the memo to be offensive, I don’t think a court will find it to be “egregiously” so.

In short, there is no open-and-shut case here.  But there is a case, and given that this former employee will have strong legal representation, I expect Google will rapidly settle the matter with a 6- or 7-figure payout to avoid having to publicly defend its diversity programs and its politically homogeneous work environment.

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