April 7, 2003 4:00 AM PDT

Porn spam--legal minefield for employers

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WASHINGTON--Lewd e-mail promoting pornography may soon pose more than just a technical challenge in the ongoing fight against spam--experts say it's set to become an acute legal problem, too.

Graphic images appearing unbidden on PCs by way of e-mail in-boxes could qualify as evidence of a "hostile work environment," something that's prohibited by federal employment law.

As a result, porn spam could begin to crop up in sexual harassment complaints from employees offended by the material. Even if companies aren't the source of such messages, they could be liable for hefty civil fines if managers know that porn spam is a problem and don't move to address it.

"You have to provide a workplace that's free of sexual harassment. That right is so clearly established that no employer could say, 'I didn't know I had to do that,' if they're on notice about sex spam," said Michael Modl, an attorney who specializes in workplace harassment claims at the Madison, Wis., law firm of Axley Brynelson.

The legal arguments have not yet been tested in court, but scholars say the combination of lucrative damages and porn spam's steadily increasing volume will make lawsuits drawing on at-work porn spam inevitable. Statistics compiled by analysts at antispam-software company Brightmail show that pornographic solicitations represent the fastest-growing category of unwanted e-mail ads, doubling as a percentage of spam in the last few years.

Many of those messages come with images linked to outside Web sites, images that are displayed automatically in the preview panes of popular e-mail clients such as Microsoft's Outlook, potentially exposing even cautious e-mail users to offensive pictures and to various security issues. Microsoft has said it plans to tweak the image default settings in a pending version of Outlook to prevent pictures from showing up on a computer screen without the consent of the user. The move is necessary to curtail spam, the company said, without specifically mentioning porn.

Such tweaks may help, but the most obvious response to porn spam is to filter out messages that appear to be sexually explicit. Products that do precisely that have fueled a growth industry during the last few years, with approaches ranging from sifting through incoming messages for phrases known to be used by porn spammers to performing statistical analyses on e-mail text to blocking transmissions from a blacklist of known or suspected spammers.

Serious consequences
Companies face a legal duty to take action as a result of federal civil rights laws dealing with sexual discrimination. U.S. law says that it is illegal for employers to discriminate against employees based on their "race, color, religion, sex or national origin."

Courts have interpreted that broadly, ruling that sexual comments can contribute to a work environment that a reasonable person would deem hostile. In a 1993 case titled Harris v. Forklift Systems, the U.S. Supreme Court concluded that for a workplace to be illegal, "the environment would reasonably be perceived, and is perceived, as hostile." Lower courts have placed the sexual harassment classification on job titles such as "foreman" and "draftsman," on off-color jokes and cartoons displayed in the workplace and on "misogynistic rap music" audible to coworkers.

Employers face serious penalties if they don't remove such things from the working environment. People who have been subjected to harmful work settings can sue for up to $300,000 in compensatory and punitive damages, if the company has more than 500 employees.


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Damages are scaled back to $200,000 if the company has between 200 and 500 employees, with lower fees paid out by still smaller companies. If an employee leaves because of an environment judged hostile, they can ask for reinstatement, back pay and back benefits.

Because spam typically is sent by someone not affiliated with the company, the Internet offers a new twist on the old problem of providing a harassment-free workplace.

Eugene Volokh, a professor of law at UCLA, who writes about workplace harassment law, says the e-mail's origin doesn't matter.

"Just as an employer has a duty to protect from patrons and other people--like the (delivery) guy who fondles a secretary--there's a good theory saying a company has a duty to filter (offensive e-mail) even if the employees are being harassed entirely from far outside the company walls," Volokh said. "If the employer is reasonably capable of filtering the material, and if it doesn't do that, it would be held liable."

Diana Johnston, an attorney in the Equal Employment Opportunity Commission's Office of Legal Counsel, says the "notion of spam coming in from outside seems to me most analogous to the situation where an employee is being harassed by a customer or client as opposed to another employee."

For a company to be held liable for porn spam, Johnston says, it would probably have had to receive reports from upset employees and not acted on them.

"The fact that it may sometimes exist is not going to be enough," Johnston said. "If you're talking about harassment coming in from the outside, the employer has to be on notice before they're subject to any liability. I would think the employer would not be liable unless the employee notified the employer that he or she was receiving this kind of material."

"Part of the equation is whether the employer has the ability to control the conduct," Johnston said. "Because the hostile environment is created by cumulative events, employers generally want to step in at an early stage so it doesn't rise to the level of illegality."

Pre-emptive blocking?
There seems to be little doubt among experts that an employer must respond quickly if employees complain about porn spam or if supervisors receive similar e-mail messages themselves. If an employer is not on notice, however, its responsibility is less clear.

Joanna Grossman, a professor of law at Hofstra University, who writes about sex-based discrimination, predicts that cautious employers will choose to install spam filters even before they receive complaints from employees.

"To be safe, employers may decide to implement some kind of general blocking software," Grossman said. "It is an overstatement to say


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employers are required to (pre-emptively) block pornographic spam from reaching their e-mail systems, but it may be something employers choose to do to ensure they don't run afoul of the rules of liability. Courts certainly look favorably upon employers who take measures like this."

One recurrent problem with spam-blocking technologies is that they tend to snare some legitimate e-mail too. In the vernacular of spam fighters, those legitimate messages are "false positives," while actual spam that is erroneously classified as legitimate correspondence is a "false negative." In February, a group of e-mail marketers began an effort to compile grievances about overbroad spam filters.

Frank Gillman, director of technology at law firm Allen Matkins Leck Gamble & Mallory in Los Angeles, said his company has installed a strong spam blocker that's reduced the spam in his personal account to about three messages a day, compared with nearly a hundred without the software.

Still, Gillman said he doesn't distinguish porn spam from other types of unwanted e-mail when seeking to manage the firm's network. It all falls under the scourge of spam.

"The company can't control the content of spam," Gillman said. "All we can do as employers is put in a mechanism that minimizes the ability of messages to get there."

Gillman said the company would take a different approach if an employee were sending out lewd e-mails or proactively visiting porn Web sites in the workplace. But he said most people have just come to expect a certain amount of lewd spam, whether from their home or work networks.

"I think it's yet another reality that comes with the cyberworld, like viruses. Any technological improvement is always going to come with some kind of downside," Gillman said.

David Burt, a spokesman for N2H2, which makes filtering software designed to prevent access to pornographic Web sites, says it's harder to detect sexually explicit spam than it is to block sexually explicit sites.

"We have never seen much evidence that (Web) pornographers try to subvert filters, and I assume that's because most of the paying customers of porn sites are adults downloading from their own homes," said Burt. "Spammers on the other hand, do aggressively try to fool spam filters...We don't see that kind of stuff with commercial porn Web sites."

Overzealous filters
Antispam blacklists, some of which punish entire Internet providers or hosting services in a guilt-by-association approach, frequently label legitimate e-mail as porn. In September, Yahoo's storefronts site was added to a list of suspected spammers, and in July, U.K. telecommunications giant BT's main e-mail hub appeared on SpamCop's blacklist. Even very reliable services like SpamAssassin occasionally mislabel e-mail, though the spam threshold can be adjusted.

Allison Michael, who cochairs the employment practice at Jones Day in Los Angeles, calls these "uncharted waters" for businesses because they must weigh the risk of accidentally losing important e-mail with the peril of substantial legal liability.

"The balance of an employer's obligation to protect its employees from harassment, an employer's sole ownership of its electronic highway and an employee's privacy rights creates a challenging management opportunity," Michael said. "There is also the purely financial consideration of the disruption to the efficiency of operations and the potential loss of customer business that may result from the blocking of legitimate e-mails."

Michael says that depending on the size of a company and its resources, it may be able to take an alternate approach. An employer could establish "a written policy that prohibits employees from opening--and certainly from transmitting--an e-mail that is or appears to be unrelated to company business," Michael said. "In any scenario, it is unlikely that an employer would be required to completely eliminate the possibility of receipt into its system of pornographic spam e-mail, but it is safe to assume that an employer would be required to take reasonable and appropriate actions aimed at preventing it."

Walter Olson, a fellow at the Manhattan Institute, who runs the Overlawyered.com site, predicts that trial lawyers will find porn-spam lawsuits to be a growth industry.

"Once an employee complains, and asks the employer to install blocking, the liability risk in not doing so grows more acute," Olson said.

Hans Bader, an attorney at the Center for Individual Rights, has criticized "hostile environment" laws as violating free speech rights guaranteed by the First Amendment. Logically, he said, mass e-mail should not count as sex discrimination because spammers don't know the sex of the person who reads it.

Bader said that courts, especially state courts, still take an expansive view of sexual harassment, but he predicts that will change over time as courts become more sensitive to free speech concerns.

"It's ironic to treat gross e-mails as sex discrimination against women, since that assumes that women are especially sensitive and mentally frailer than men are--if it offends them equally, there is no discrimination," Bader said. "Yet that is what sexual harassment law does now in many jurisdictions--it bans sexual speech because people think women are uniquely offended by it. It is based on sexual stereotypes."

For now, however, an expansive view of workplace harassment is the law of the land. The federal Equal Employment Opportunity Commission, for instance, has said that sexual harassment concerns mean a Minneapolis library should install Web filtering software, a small step from requiring that e-mail must be filtered as well.

Mike Eastman, director of labor law policy at the U.S. Chamber of Commerce, says that federal sex-discrimination law never envisioned how the Internet has changed the workplace.

"We're talking about laws that were made with specific circumstances in mind and trying to apply them to things that weren't contemplated," Eastman said. "Really all we can do is guess."

 

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