Saturday, August 17, 2013

Golden Silence: Privatizing and Paying for Gag Orders

August 17, 2013, 10:20 a.m.

They're Not Just for the Intelligence Community Anymore

The law provides a remedy for someone harmed by the deliberate or negligent actions of a corporation.

Such remedies create two problems for defendants. One is the money damages, sometimes in the millions. Usually, for a large corporation, that's something that can be paid for out of the petty cash drawer. Not a big problem.

The more significant consequence, especially when they intend to go on harming -- or in the case of the tobacco industry, killing -- their customer base, is the negative impact on sales from bad publicity, which can mount up to multiples of any tort damages.

This aspect of the private sector's problem is similar to what the intelligence community is now confronting with the public. There are the substantive policy questions that surround the alleged constitutional and law violations in what they are doing. But more significant for them in many ways is their having lost the ability to maintain a cloak of secrecy over their actions. If a government intends to violate the law in the way they spy on their own citizens it is really necessary to have confidentiality agreements with employees, restraining them from talking about citizen abuses -- making them subject to prosecution for "espionage" and "aiding the enemy" should they reveal the government's intent. When government agents obtain citizens' private papers from third parties, they must be able to silence those from whom they obtain the papers, insuring that they will never tell what the agent has done -- also backed up with the possibility of prosecution. An ability to intimidate those with knowledge of what's going on is central to the success of surveillance programs.

Actually, corporations have been using similar techniques for some time. Once caught red handed, they will offer to settle law suits, exacting as a part of their cash offer a gag order, forbidding the plaintiff to reveal anything about the case, the harm done by the corporation, or the amount of the settlement. [Fracking water photo credit: multiple sources.]

So I wouldn't even be writing about this subject were it not for the excellent job Stephen Colbert recently did explaining how it worked for a family suffering health damages from fracking. Here it is:

The Colbert Report
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[Source: "The Word -- Gag Gift," The Colbert Report, August 15, 2013.]

If you didn't know what Colbert was referring to when he spoke of "tap fires" in that video clip, this picture will clear up any confusion. It gives "firewater" a whole new meaning: water you can set on fire. [Photo credit: multiple sources.]

To remind, and put private sector gag orders in context, here is Colbert's explanation of the President's citizens surveillance program:

The Colbert Report
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[Source: "NSA Press Conference on Domestic Spying," The Colbert Report, August 15, 2013.]

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