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07/01/2014

Enter the Corporate Congress: SCOTUS & FACEBOOK

by Craig Klugman, Ph.D.

PART 1: SCOTUS
One of the facts that hiring managers are taught is that you can never ask a potential employee about their religion (among other protected areas) unless the candidate brings it up. But after this week, any job candidate would be wise to ask their potential employer about his/her/its (in the case of corporations) religious beliefs.

Who one works for is increasingly determining not only what health care coverage you have but also what laws you have to follow and what legal protections you have. If an employer is a “closely held company” (a term that is not defined, but NPR estimates describes 90% of all companies), then they can legally discriminate against women’s reproductive health care. In Burwell v. Hobby Lobby, the U.S. Supreme Court ruled that closely held companies managed by religious families cannot be required to pay for contraception coverage, even if required under the Affordable Care Act. (Footnote: I will not discuss here whether medical care and health insurance should be connected to employment—that’s fodder for another post).

For those on the side of these religiously-based companies and “religious freedom” advocates, this ruling is a win. They believe that the government should not be permitted to interfere with a person (or now that it is firmly established, a corporation’s) freedom to live life in accord to their religion. In other words, they hold that any behavior or action is okay as long as their religion allows it. And no one should be able to prevent them from discriminating if it falls under their religion. This is the same argument that was used in several states for bills that would have permitted discrimination against serving same-sex couples. After all, if your religion says gay marriage is wrong, then it is okay to kick potential clients to the street of your florist or bakery if a same-sex couple dares to ask for your services. In one bill, the offended owner could even received damages if the same-sex couple filed complaints or sued on the basis of discrimination.

Make no mistake about it, in this guise, “religious freedom” is about declaring “a right to discriminate.” If a realty agency is religiously-based, could it refuse to sell houses to same-sex couples? Single women? People of different ethnicities? According to “religious freedom” the answer is “yes” and no federal law should be able to force them to do otherwise.

The SCOTUS ruling was 5-4. Five men have just told businesses that it is okay to discriminate against women’s health. All 3 women on the court disagreed. One could argue that the 5 men are conservative and the women are all liberal, but that disguises the fact that this is a case of men telling women what to do with their bodies. In her dissent, Justice Ruth Bade Ginsberg goes further: “In a decision of startling breadth, the Court holds that commercial enterprises…can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs…Would the exemption…extend to employers with religious grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus), and vaccinations (Christina Scientists, among others)?”

Ginsberg is an impeccable logician and her reasoning is consistent in taking this ruling to its potential extremes. I personally work for a Catholic institution, which has offered domestic partner benefits, religious services for the Jewish high holidays, and more. State and local laws require some of this, but much is the institution’s right. Might I have to change employers to work for someone whose beliefs permit me the basic human rights I desire? Can Jews only work for Jews, Evangelical Christians only for the same, Muslims only for Muslims, etc.? Do we really want this new segregation?

I think this case is probably less about controlling women (though some conservative quarters may view this as a acceptable “side effect”) or making a statement on Obamacare but rather is a growing movement that further privileges corporations over people. This latest ruling expanded what corporations or companies qualify as people under the law that can now claim protection under the Bill of Rights. As George Orwell stated in Animal Farm, “All animals are equal, but some animals are more equal than others.” The more equal animal now is the corporation and closely-held company.

PART II: FACEBOOK
If you needed more proof that the rules are different for corporation, you just need to look at the other big news item of the last few days: Facebook conducted unethical research on its members. In the June 17th issue of the Proceedings of the National Academy of Sciences of the United States, was an article titled “Experimental evidence of massive-scale emotional contagion through social networks.” This manuscript describes the results of a study on emotional contagion—the idea that emotional states can be transferred to others. For example, if one sees a bunch of negative Facebook posts, is that person more likely to post negative things. To find the answer, a research team comprised of Facebook and researchers at UCSF and Cornell (and an editor at Princeton) manipulated users Facebook feeds to be more negative or more positive. The subject pool consisted of 689,003 Facebook users, none of whom had any clue that Facebook was altering their feeds for an experiment. One of the largest studies (in terms of subject pool) ever had absolutely no consent process nor do any of those subjects have any clue that they were involved with a research study.

Facebook claims that consent was unnecessary because their 14,000-word terms and conditions of service includes this phrase: “We may use the information we receive about you…for internal operations, including troubleshooting, data analysis, testing, research and service improvement.” As a Facebook user, I interpret this as internal research, looking at quality improvement, testing features and such. I do not in any way view this as giving permission to be part of a massive research study. Then again, as a person and not a corporation, my views do not matter very much. Also consider that the Washington Post has found that at the time the records were collected, the above statement was not part of Facebook’s user service agreement. If that is the case, then there was no consent whatsoever.

As for the academic researchers in this project, Cornell University’s independent review board (IRB) released a statement that they approved the study as a pre-existing records project. Usually such studies only use records that are de-identified or that if a person could be identified, it would pose a harm or risk to them. Clearly, Facebook data is very identifiable and they did not innocently view records, they were manipulating what people read—an intervention study. In addition, Cornell released a statement stating that the experiment took place before the IRB was even consulted: A big no, no in the worlds of federal compliance regulation and research ethics.

The only reason that an IRB was even approached was because Facebook was working with academic researchers. Under the Common Rule, federally-funded research conducted by individuals in universities that receive federal research money must undergo IRB review. Some universities extend that requirement to all research, not just federally-funded work. Had Facebook done all of this work internally, there would not even have been the low level requirement of talking to an IRB. As a private corporation, Facebook can do anything it wants with your information with no oversight.

In previous cases of unethical research, or even research that neglected IRB review or lied to the IRB, the research has been rescinded from publication, the data destroyed, and the researchers punished through probation or firing. It will be interesting to see what happens in this case. My guess is that nothing will happen. As a private corporation, Facebook did not do anything wrong in regards to research. Even today, no individual Facebook member knows if they were a research subject. Consider that even deceptive research is required to have a debriefing, when subjects are told what the research was really about.

Part III: THANK YOU WILLIAM GIBSON
In 1984, William Gibson published the dystopic novel Neuromancer. The relevant element of this book for this discussion is that corporations rule the world. Corporations own all of the land and are supreme governmental bodies in those areas. The corporation decides the rules for everyone who works for them including providing and charging for health care.  Taking this one step further, the television show Continuum is about a group of rebels who are trying to change society because the corporations not only control Congress, they are Congress (known as “The Corporate Congress”). Only corporations have rights in that fictional dystopia.

If corporations are slowly suing to have the full range of rights under the Bill of rights (SCOTUS has given them speech and religion), could the right to vote be far behind? Or the right for corporations to bear arms (perhaps in the form of private corporate armies)?

The move towards corporate rights at the expense of human rights is a disturbing one, and one that will change our lives, not for the better.

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