Category Archives: Content


Two articles on content controls.

When Is Free Speech Illegal?,” Wall Street Journal. November 24, 2014 B5. Can your posts on Facebook be legally actionable, and, if so, who can take action?

Polygraph Critic Faces Federal Criminal Charges,” Wall Street Journal. November 24, 2014 B5. Man who coaches people on how to “beat” a polygraph indicted. [But if the tests can be beat, how does this obstruct law enforcement?  They’re either reliable, and can’t be beat, or they aren’t reliable, so who cares?]

What controls does your company put on the content you write? How do you know what those controls are?  Hint: read your Code of Conduct.

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Watch what you write

In a blog post on May 18, 2014, I commented upon the 69 words that GM’s lawyers told the engineers not to use. Pretty bog-standard stuff on watching what you write.

“Lawyers, Judges Modify View That Adverbs are Mostly Bad,” Wall Street Journal, October 8, 2014 A1.  Lawyers and their view on adverbs in statutes and legal opinions.  Are adverbs inherently ambiguous?

I gave hundreds of “Watch What You Write” presentations to business folks during my 30+ years of legal practice.  I cautioned people to watch out for adverbs, adjectives, and absolutes, as they are inherently imprecise.  And difficult to explain five years later in litigation.  I also suggested that people consider that the medium is part of the message, and gauge the permanence of the medium to the importance of the message.  Email lasts forever. Think of content + container.

Does your information governance program address controlling the actual words people use?  Should it?

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Not since Nuremberg have such documents been seen.  Is the compelling need to keep records, even of atrocities, part of the psychosis?

“Bashar al-Assad’s Grim Catalog of Death,” Wall Street Journal, July 26, 2014 A1  A photographer for the Assad regime in Syria escapes, bringing with him a huge collection of photographs of bodies of alleged anti-government activists.  Together with evidence of a detailed method of keeping track of the circumstances of the deaths.

I guess the people collecting and keeping the data didn’t think they were doing anything wrong.  That’s one explanation.  What was this information used for?

What must be the cultural context where such things happen, both the deaths and the documentation?  Should you assume that everything you write will one day be published, above the fold, on page one in the Wall Street Journal? [Ed.: actually, this was below the fold, page 1.]

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FTC raises its ugly head

If you commit fraud against the consumer, you can incur the wrath of the FTC.

Specifically and to wit:

“FTC Sues T-Mobile, Alleging It Charged Customers Bogus Fees,” Wall Street Journal, July 2, 2014 B3  Customers got “crammed.”  Charged for a bunch of services they never ordered.  The FTC sued in civil court.

So, there’s a risk in advertising, and in charging customers for things they didn’t order.  Who’d have thunk it?  What does that do to your company’s culture?  Or is that your company’s culture?

Why doesn’t the FTC also sue the people who inflated the Transformers movie gate?  Why did they do that, except to deceive the public as to how popular the film is/was?

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Filed under Compliance, Compliance, Content, Controls, Culture, Governance, Internal controls, Oversight, Risk

Where to start?

1. A House of Representative’s staffer is under investigation by the SEC and DOJ for leaking health care policy changes, which was used to trade stocks.  “House Staff Under Scrutiny As Trading Probe Heats Up,” Wall Street Journal, June 19, 2014 A1  Information has value.

2. Trademarks have value, but acceptability evolves over time.  “Redskins Lose at Name Game,” Wall Street Journal, June 19, 2014 A1  Patent and Trademark Office decided (again) that the Washington Redskins’ name, after 80 years, was no longer “worthy” of trademark protection.  Could that happen to you?

3. What impact will proposed increases in insurance rates have on the 2014 mid-terms elections? “Large Health Plans Set to Raise Rates,”  Wall Street Journal, June 19, 2014 A1

4. Saucus goose apparently not saucus gander.  “Lawmakers Concerned Over Wider Surveillance,” Wall Street Journal, June 19, 2014 A4  Apparently, Congress is concerned that the standards applicable to those with security clearances would apply to them.  Talk about a sorry culture of governance.

4. Free speech, even commercial speech, has value some places. “Beijing Puts New Limits On Media, Lawyers,” Wall Street Journal, June 19, 2014 A10  You certainly don’t want lawyers to make “aggressive or inappropriate” online comments.

5.  And not one news article in the Front Section on the evanescent IRS emails.

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A different gag order.

One of the steps to good information governance is to control inputs, and to educate your folks not to write words high in drama but low in meaning, or ambiguous, or absolute (when you don’t mean absolute).

So, you advise your clients not to write “Corvair-like” or “rolling sarcophagus” when describing your product. You counsel them to avoid characterizations of defect and keep business writing strictly factual. So, avoid characterizing something as a defects; instead, state the applicable factual parameters, such as 60cms (where the minimum in 65cms), or “the ball bearing did not meet specifications.”

But then even the Wall Street Journal slams you for educating your folks.

“U.S. Says GM Hid Recall Failures,” Wall Street Journal, May 17, 2014 A1

Any lawyer worth his/her salt would give the same advice. Don’t unnecessarily shoot yourself in the foot by writing dumb, unfactual stuff. For the 69 words employees were told not to use, go here. Not a bad list; I would agree with everything but “failed,” “safety,” and safety-related.” Depending on context. Nothing deceptive IMHO. Now, as part of the Consent Order, they can’t tell people not to use these words?

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Emoticons for plaintiff’s lawyers

Even the smartest guys in the room write dumb stuff. But give them emoticons in their email? Let the plaintiff’s lawyers rejoice (and order a new jet).

“Tech Giants Discussed Hiring, Say Documents,” Wall Street Journal, April 21, 2014 A1

For the non-lawyer, agreements between competitors on who to hire and who not to hire are troubling; may be an antitrust violation. So when the wigs in Silicon Valley discussed hiring, that’s an issue. But when Steve Jobs was told of a recruiter from Google who was fired for recruiting from Apple, Mr. Jobs forwarded the email with a smiley face. Let the lawsuits commence (or continue).

How do you control what people write? Why do they get dumber on a keyboard or a phone keyboard? Why are senior execs a bigger problem?

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Truth in tweeting

Let’s say you decide to pump up your advisory services business and a mutual fund.  So you send tweets puffing up your average returns by claiming performance before fund was created. And you state your fund was ranked number one, which, while true for some of the time, wasn’t completely accurate. And claim that you performed at twice the S&P 500 for ten years. And when a newspaper questions some of your claims, you sue.

The SEC brings civil charges for misleading investors and you get fined.  Your lawsuit gets dismissed.

Does this besmirch not only your reputation but also that of Suze Orman, who’d helped you get started.  Is that a risk she knew she was taking?

“SEC: Adviser Tweets Not So Sweet,” Wall Street Journal, January 31, 2014 C3

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Oceans 11

Lots of articles to pick from.  Hard to choose what to highlight.  So I go again with blurbs. In no particular order.

“Bridge-Spat Emails Pose Questions For Christie,” Wall Street Journal, January 9, 2014 A1 Revelations of aides’ emails on politically motivated bridge lane closures force Gov. Christie to take a stand.  In a subsequent news conference, he took the responsibility, named names, and overall handled the crisis about as well as he could. Hazards of email, and trusting your direct reports not to lie to you.  But what impact on the people who remain? And on Gov. Christie’s reputation for truth, veracity, and leadership?

“To Ferrari, Imitation Is Not the Sincerest Form of Flattery,” Wall Street Journal, January 9, 2014 A1  Without the logos, if a copy “protected”? What’s your brand worth and how do you protect it?

“Principal Reaches Deal In Steubenville Case,” Wall Street Journal, January 9, 2014 A2  (not online). Community service for school official’s failure to report rumors of teenage sex.

New Fault Maps Cast Doubt on L.A. Projects,” Wall Street Journal, January 9, 2014 A5 What happens when law forbids development on top of fault zone and then the fault zone map changes?

Priest’s Use of ‘Allah’ Brings Malaysia Sedition Probe,” Wall Street Journal, January 9, 2014 A8  Non-Muslims prohibited from saying “Allah.”

“French Comic Tests Law on Hate Speech,” Wall Street Journal, January 9, 2014 A10 Anti-Zionist comic pushes against prior restraints.

Vague Penney Shakes Up Investors,” Wall Street Journal, January 9, 2014 B3 Lack of specificity on Christmas sales send stock down 10%.  When is no information “information”?

“Entrepreneurs Shape Free Data Into Money,”  Wall Street Journal, January 9, 2014 B5 People turning free government information into something of value to others.

“Oceans Apart Over Privacy,” Wall Street Journal, January 9, 2014 B7 Browsing history that links to an identifiable human.  Good data mining in the US; privacy violation in France?

“Borrowers Hit Social Hurdles,” Wall Street Journal, January 9, 2014 C1 Watch out what you say on Facebook and Twitter; it may result in being turned down for a loan.

“Outage Zaps E*TRADE Systems,” Wall Street Journal, January 9, 2014 C1 Was the baby really in time out? For 5 and a half hours?  Long string of trading platform failures.  What is your business depends on that?




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Too much content control

Is it possible to control your content too much?

To avoid violations of the US trade sanctions against a bunch of bad actors, companies often train people to be on the watch for “hot words,” words that indicate you may be about to engage in prohibited conduct including, for example, money laundering.  But what if some bright spark came up with the idea of removing those “hot words” from company correspondence, but otherwise continuing with the prohibited conduct?

That appears to have happened to Royal Bank of Scotland. “RBS to Pay Penalty Over U.S. Sanctions,” Wall Street Journal, December 12, 2013 C3  Cost: $100 million in fines.  And terminations for former head of regional banking services and the former head of the money-laundering compliance unit.  Still, no one went to jail.

So, do compliance programs teach people too much?  Is knowledge a dangerous thing?

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