Saturday, March 15, 2008

And This is Supposed to be a Defense?

This article in Slate purports to be a defense of Eliot Spitzer, but it nevertheless manages to encapsulate everything I found dubious about his approach. The key quote:

Many of those who ran afoul of Spitzer failed what I call the Parents' Night Test. Even if certain practices are commonly accepted in your industry or circle of friends (like going to strip joints) and are plausibly legal—or clearly illegal but rarely prosecuted (like running an NCAA betting pool in the office)—would describing these practices to your kid's kindergarten teacher embarrass you and your spouse, cause other parents to place junior on the no-play-date list, and spur the headmaster to rue the day he accepted your child?

If someone stood up at a Parent's Night I attended and announced which of the fathers (or mothers - let's not be heteronormative) had been seen in a strip club in the past year, I wouldn't applaud. I'd launch a suburban-style Stop Snitchin' campaign. Spitzer's campaign is not as obviously appalling since corporate privacy means something different than individual privacy, but there are still several issues with Spitzer's approach.

It's one thing to shame people for unethical but not illegal. It's another to use the threat of an expensive lawsuit to extort an expensive settlement for this sort of behavior. Government prosecutors exist to prosecute crimes, not arbitrate reputations.

While it's tempting to applaud Spitzer's hard-edged "we'll bury you under legal bills, even if we don't really think we can win our case" approach when it's aimed at companies like Merrill Lynch, the most common application of this sort of tactic is by large companies against much smaller ones, with chilling effects in areas such as fair use and patent law. I'm highly dubious that normalizing bullying - even if one claims to only bully other bullies - is the best way to help out the rest of us.



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