Digifesto

Tag: corporate policy

From social movements to business standards

Matt Levine has a recent piece discussing how discovering the history of sexual harassment complaints about a company’s leadership is becoming part of standard due diligence before an acquisition. Implicitly, the threat of liability, and presumably the costs of a public relations scandal, are material to the value of the company being acquired.

Perhaps relatedly, the National Venture Capital Association has added to its Model Legal Documents a slew of policies related to harassment and discrimination, codes of conduct, attracting and retaining diverse talent, and family friendly policies. Rumor has it that venture capitalists will now encourage companies they invest in to adopt these tested versions of the policies, much as an organization would adopt a tested and well-understood technical standard.

I have in various researcher roles studied social movements and political change, but these studies have left me with the conclusion that changes to culture are rarely self-propelled, but rather are often due to more fundamental changes in demographics or institutions. State legislation is very slow to move and limited in its range, and so often trails behind other amassing of power and will.

Corporate self-regulation, on the other hand, through standards, contracts, due diligence, and the like, seems to be quite adaptive. This is leading me to the conclusion that a best kept secret of cultural change is that some of the main drivers of it are actually deeply embedded in corporate law. Corporate law has the reputation of being a dry subject which sucks in recent law grads into soulless careers. But what if that wasn’t what corporate law was? What if corporate law was really where the action is?

In broader terms, the adaptivety of corporate policy to changing demographics and social needs perhaps explains the paradox of “progressive neoliberalism”, or the idea that the emerging professional business class seems to be socially liberal, whether or not it is fiscally conservative. Professional culture requires, due to antidiscrimination law and other policies, the compliance of its employees with a standard of ‘political correctness’. People can’t be hostile to each other in the workplace or else they will get fired, and they especially can’t be hostile to anybody on the basis of their being part of a protected category. This has been enshrined into law long ago. Part of the role of educational institutions is to teach students a coherent story about why these rules are what they are and how they are not just legally mandated, but morally compelling. So the professional class has an ideology of inclusivity because it must.

Why managerialism: it acknowledges political role of internal corporate policies

One modern difficulty with political theory in contemporary times is the confusion between government and corporate policy. This is due in no small part to the extent to which large corporations now mediate social life. Telecommunications, the Internet, mobile phones, and social media all depend on layers and layers of operating organizations. The search engine, which didn’t exist thirty years ago, now is arguably an essential cultural and political facility (Pasquale, 2011), which sharpens the concerns that have been raised about their politics (Introna and Nissenbaum, 2000; Bracha and Pasquale, 2007).

Corporate policies influence customers when those policies drive product design or are put into contractual agreements. They can also govern employees and shape corporate culture. Sometimes these two kinds of policies are not easily demarcated. For example, Uber has an internal privacy policy about who can access which users’ information, like most companies with a lot of user data. The privacy features that Uber implicitly guarantees to their customers are part of their service. But their ability to provide this service is only as good as their company culture is reliable.

Classically, there are states, which may or may not be corrupt, and there are markets, which may or may not be competitive. With competitive markets, corporate policies are part of what make firms succeed or fail. One point of success is a company’s ability to attract and maintain customers. This should in principle drive companies to improve their policies.

An interesting point made recently by Robert Post is that in some cases, corporate policies can adopt positions that would be endorsed by some legal scholars even if the actual laws state otherwise. His particular example was a case enforcing the right to be forgotten in Spain against Google.

Since European law is statute driven, the judgments of its courts are not amenable to creative legal reasoning as they are in the United States. Post’s criticism of the EU’s judgment in this case is because of their rigid interpetation of data protection directives. Post argues a different legal perspective on privacy is better at balancing other social interests. But putting aside the particulars of the law, Post makes the point that Google’s internal policy matches his own legal and philosophical framework (which prefers dignitary privacy over data privacy) more than EU statutes do.

One could argue that we should not trust the market to make Google’s policies just. But we could also argue that Google’s market share, which is significant, depends so much on its reputation and users trust that in fact it is under great pressure to adjucate disputes with its users wisely. It is a company that must set its own policies, which do have political significance. It has the benefits of more direct control over the way these policies get interpreted and enforced in the state, faster feedback on whether the policies are successful, and a less chaotic legislative process for establishing policy in the first place.

Political liberals would dismiss this kind of corporate control as just one commercial service among many, or else wring their hands with concern over a company coming to have such power over the public sphere. But managerialists would see the emergence of search engines as an organization among others, comparable to other private entities that have been part of the public sphere, such as newspapers.

But a sound analysis of the politics of search engines need not depend on analogies with past technologies. This is a function of legal reasoning. Managerialism, which is perhaps more a descendent of business reasoning, would ask how, in fact, search engines make policy decisions and how does this affect political outcomes. It does not prima facie assume that a powerful or important corporate policy is wrong. It does ask what the best corporate policy is, given a particular sector.

References

Bracha, Oren, and Frank Pasquale. “Federal Search Commission-Access, Fairness, and Accountability in the Law of Search.” Cornell L. Rev. 93 (2007): 1149.

Introna, Lucas D., and Helen Nissenbaum. “Shaping the Web: Why the politics of search engines matters.” The information society 16.3 (2000): 169-185.

Pasquale, Frank A. “Dominant search engines: an essential cultural & political facility.” (2011).