Booz Allen’s liability, Europe and the NSA, and Obamacare as stimulus
1. Booz Allenâ€™s liability in the government snooping leaks:
We now know that the source of last weekâ€™s leaks revealing various U.S. government data collection and surveillance activities is a low-level employee of the giant consulting firm Booz Allen Hamilton, which the New York Times reported on Monday was paid $1.3 billion last year by various American intelligence agencies under multiple contracts related to data collection and analysis. (The firmâ€™s website Â has a whole section under â€śIntelligence Communityâ€ť about how Booz turns â€śBig Data Into Big Insights.â€ť)
So, the obvious question is what do those contracts say about the firmâ€™s liability if one of its employees spills its clientâ€™s secrets resulting in what Director of National Intelligence James Clapper calls â€śgut=wrenchingâ€ť losses? Can we at least get some or all of our money back? (The companyâ€™s stock was down in Monday morning trading, perhaps in anticipation of such problems.) If not, why not?
2. Greenwaldâ€™s conflict?
Revealing Snowdenâ€™s identity was Guardian reporter Glenn Greenwaldâ€™s latest in his series of scoops on U.S. government snooping. Greenwald posted a video interview with Snowden in which the Booz Allen employee says he revealed the governmentâ€™s intelligence programs to Greenwald to expose abuses of what he called â€śa surveillance state.â€ť
Iâ€™d sure like to know exactly how much, if at all, Greenwald encouraged the 29-year-old Snowden to turn himself in. After all, the main beneficiary of Snowdenâ€™s confession is Greenwald â€“ because now itâ€™s Snowden who will likely be prosecuted while Greenwald will avoid all of the legal hassles that would have come from an investigation aimed at finding his source.
3. Look to Europe for the next fight over NSA snooping:
This paragraph in a Wall Street Journal reportÂ on Saturday summarizing the weekâ€™s revelations about the snooping programs should be a launching point for lots of stories in the coming days:
Obama administration officials stressed Friday that the NSA surveillance program focuses on foreign nationals, not Americans. But for companies like Facebook â€” which counts roughly 80% of its monthly users outside the U.S. and Canada â€” the disclosure of surveillance on foreign nationals raises its own problems.
A backlash, privacy advocates warned, may be particularly strong in Europe, where governments and citizens have been more sensitive to privacy issues.
American companies that have operations in Europe and seek to do business with, and collect data from, Europeans online cannot bring the data into the United States unless they obtain something called â€śSafe Harborâ€ť status â€“ meaning they are vetted to make sure they are protecting the data the way Europeâ€™s tight regulations demand it be protected.
So it seems obvious that European privacy regulators are now going to demand to know how Facebook and all the others could not be committing wholesale violations of those Safe Harbor promises by allowing the NSA or FBI access to everyoneâ€™s emails, chats, phone calls, and other data. For some, the answer may be that the companies kept the data on servers in Europe, but if thatâ€™s the case then those companies clearly violated the promises they must make under Europeâ€™s tough privacy laws, or still violated their Safe Harbor promises because they allowed the NSA or FBI Â to tap into the data from the U.S. or bring it into the U.S.
Hereâ€™s a summary Â of how Safe Harbor works. Is there any way these companies wonâ€™t be accused of violating its required privacy protection self-certifications? Did these companies somehow seek and get U.S. government protection from the likely wrath of European officials â€“ and how is that now going to play out?
4. Obamacareâ€™s stimulus:
Lately, Iâ€™ve been reading lots of healthcare industry trade publications covering the implementation of Obamacare, and Iâ€™ve been added to lots of related email lists. What Iâ€™ve seen cries out for a fun feature in the Wall Street Journal or other business publication: Do a count of the number of seminars, conferences, and â€śsummitsâ€ť being held in Washington and across the country promising to help insurers, benefits managers, hospital executives, lawyers, government officials and others in and around the healthcare industry understand the ins and outs of Obamacare. From the ads and other promotional material Iâ€™ve seen lately, Iâ€™m betting there are hundreds coming up between now and the end of the year.
Then do a count of what it would cost for one person to attend all of them. Iâ€™ll bet itâ€™s over $200,000 (not counting stimulants to keep attendees awake).
Then estimate the attendance at each and multiple by the average price of a ticket, add in an estimate of related travel expenses, and Iâ€™m guessing just this round of seminars intended to help industry experts understand a government program has stimulated the economy to the tune of $50 million to $100 million dollars. And thatâ€™s not counting the many more millions being paid to squadrons of consultants who are getting hired because these conferences hardly do the trick.
5. Obamacare and labor law:
Speaking of the ins and outs of Obamacare, I got copied last week on an interesting email to his clients from Ralph Weber, an employee benefits consultant. Weber wrote to alert them to a legal angle I hadnâ€™t thought of — and havenâ€™t seen written about — that could end up generating a slew of dicey lawsuits.
Weber points out that â€śCountless employers and their advisers are considering a healthcare reform strategy of cutting employees’ weekly hours to less than 30 hours to try to avoid dealing with coverage requirements underâ€ť Obamacare.
However, Weber notes, the federal Employee Retirement Income Security Act (ERISA), which regulates employee benefits, says that â€śIt shall be unlawful for any person to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.â€ť
As Weber explains, â€śIf the single motive for cutting employeesâ€™ hours is to avoid the purposes of [Obamacare], to me, that sounds like a subterfuge that interferes with a plan participant’s rights to their health plan. That is one of the very prohibitions that ERISA section 510 was written to prevent.â€ť
So, are we going to see a wave of litigation on behalf of workers who suddenly got cut to 29 hours a week on the eve of Obamacare? If so, what will the employersâ€™ defense be?Â Sounds like a topic for a few more seminars.