DongleGate: A Legal Perspective and some social commentary | John V. Petersen
Those of you that know me, know that I’m both a software developer and a lawyer. I’ve not commented on the #DongleGate issue – except to say that this issue has privacy, first amendment and civil litigation ramifications. Those of us witnessing this escapade have seen at least 1 guy lose his job and this just in, the complainant Adria Richards (http://butyoureagirl.com/) has lost her job as a developer evangelist for SendGrid. Here’s the blog post from her former employer: http://blog.sendgrid.com/a-difficult-situation/.
One thing we can agree on, there is a massive lack of maturity in this business. At one time or another, including yours truly, has been guilty of an off-color joke. Most of the times, at community gatherings like conferences; we are typically amongst friends and feel comfortable that we can be ourselves, letting our guard down. At the end of the day, we must rely on the fact that in this business, we have to have a thick skin and that we are adults. That in no way is meant to justify offensive comments and that somebody like Adria didn’t have a right to be offended. She did have a right to be offended. And to that, it’s not for anybody else to question it. It’s enough for anybody to say they were offended – and others should respect that. That said, does it mean the offended have an open ended license to exact whatever retribution they want on the offenders? No…. In these community gatherings, there is a level of privacy, within the community cocoon; we have a reasonable expectation to.
We see the t-shirt shirt = “Fork you”. We see on open source projects: “Fork me on GitHub”. Doesn’t take a rocket scientist to see the double entendre here. If one is to where that shirt in public, does that give anybody who is offended license to snap a picture, tweet it, and then hope that some misfortune befalls that person? I don’t think such license is granted.
Consider this YouTube video from Ms. Richard’s: http://www.youtube.com/watch?v=nMpJSKbsmgQ. There’s a saying in the law that in matters of equity, you have to have “Clean Hands.” Is it permissible for her to be offended as she was when she makes a video that could be taken as offensive by others? At about 3:03 into the video, she talks about an incident that was done to her – that could very well be taken as offensive, and she let it pass. In this case, she decided to not let something pass…something that WAS NOT said directly to her. If I was prosecuting this case, and I was going to depose Ms. Richards, this is a line of questioning I would surly explore to great details. What was her real motivation here?
This gets to my first question:
Was there a reasonable expectation of privacy by these two gentlemen?
I believe there was. They were having a private conversation, which Ms. Richards overheard. Yes, this was a public place. Did she have the right to express her indignation at those comments to these two gentlemen? Absolutely yes. In fact, that would have been the more impactful thing to do. That would be a proportional response. Reporting the incident to the PyCon staff is not appropriate. They are not there to police what people say. Note, these two guys didn’t say the comment to her. She thrust herself into their conversation. By the same token, the two guys allowed her to confront them. She didn’t. Instead, she took their picture and posted a tweet. And from there, SHE took what was a private thing and made it public. She made the situation worse. In that regard, she violated the privacy rights of these two men, notwithstanding their comments. Speaking of those comments, only her, the two guys and maybe one or two others know what the precise words were. The first result, at least one of the guys lost his job.
Does the guy who got fired have a cause of action against Ms. Richards?
This is the part you want to pay attention to as you should think very carefully about the consequences of tweeting something that is private and further, identifying specific people where harm could come to them. First, did these two guys have a right to say what they said, no matter how stupid it was? Yes, they had a right. There is such a thing as a First Amendment last I checked. It’s also not illegal to be stupid. Did the guy who got fired, his employer, have a right to fire him? If he works in an employment at-will state, the answer is yes. Is he totally out of luck? No.. He can sue Ms. Richards for Tortious Interference with an Employment Relationship. She knew and intended a certain level of a negative outcome to these two gentlemen. That’s malice. While his employer may be on good ground to fire him, he can nevertheless sue Ms. Richards to recover damages. There may also be a cause of action on defamation grounds. These two guys are being labeled as sexists when all that may have happened was a joke, off color as it may have been, that offended this one person. That too may be the basis of a cause of action.
Is there any other entity that could be liable?
As SendGrid has already admitted, Ms. Richard’s was there in her capacity as a representative as a SendGrid Employee. Ms. Richard’s did not do SendGrid any favors when she tweeted that she had SendGrid’s full support – a claim that SendGrid didn’t dispute. In the law, there is the legal doctrine of “Respondeat Superior.” It effectively means that the master is liable for the actions of his agent. Ms. Richards has a large Twitter following and that is due in least in part to her former job as a developer evangelist for SendGrid. There’s a strong argument to be made that SendGrid is liable, at least in part, for Ms. Richard’s actions – regardless of the fact that they terminated her services.
This whole episode illustrates again the importance of how we react emotionally and the legal consequences therein. If I’m the gentlemen who lost his job, I’m exploring my legal options – and there are legal options. Above all, this is a teachable moment. If you are offended at something somebody does, consider the context. 99.99% of the time, these matters are best handled privately. Takes more courage and is more impactful when you communicate your disdain to the offending party directly. If your goal is to change behavior that will more likely have the desired effect. Sure, you may be told to eff-off. That’s a risk…a risk worth taking.
How about conference organizers?
I understand that PyCon has modified their code of condut… Didn’t know that such a thing existed. I would always suggest to any conference organizer to NOT get into the business of policing their attendees. Rather, I’d rely on the venue staff for that. Obviously, if somebody is disruptive, boot their tails out. These guys didn’t appear to be disruptive at all for the record – not that it really matters in this case.
A word about the “Brogrammer” culture..
You probably know about it. If not, look it up on our favorite search engine. The fact is, guys are often not the sharpest knives in the drawer socially and are often in need of an increase in maturity level. Women have a tough enough time in this business. I know several women that do a lot of work in getting more girls interested in software development. Sad as it is, Adria Richards did more to set that effort back than the two guys she was offended by. That’s a perfect example of irony!! It’s really a shame. Ms. Richards looks to be a pretty sharp individual – one who appears to have better common sense than she displayed here. Learn from it folks.