Late last year, President Obama signed into law the Franken Amendment, which is an amendment to the Defense Appropriations Bill. It took effect last Tuesday and received both praise and derision from interested parties.
The initial impetus behind the Franken Amendment was a result of the alleged rape by fellow contracting employees of Jamie Lee Jones. Based on arbitration agreements signed with the company, Jones was unable to move the case through court channels.
The Amendment states that funds in the Defense Appropriations Act cannot be used to fund new or existing contracts in which a contractor or subcontractor requires employees to sign an agreement to resolve claims related to the Civil Rights Act of 1964 or any instances related to sexual assault or harassment. This means that any contractor currently operating in Iraq or Afghanistan now needs to go back and re-negotiate its contracts with its employees, which will likely prove to be an expensive undertaking.
An interesting side to the Franken Amendment, which is not specifically spelled out, is the issue of cyber sexual harassment or bullying. In recent years, increasing levels of attention have been paid to cyber bullying of young children, which has led to instances of suicide.
So, does the Franken Amendment extend into the cyber arena? What are some of the implications and challenges that it will face?
The Amendment most certainly would extend into sexual harassment actions that emanate from cyberspace. As the Amendment fails to define a particular medium under which such harassment must occur, it is necessary to take the broadest interpretation.
The extension of the Amendments reach could certainly prove a significant aid to victims seeking justice. However, it also opens up a range of difficulties that arbitration could potentially be the more appropriate venue.
While instances of rape and other versions of sexual harassment/assault are not necessarily easy to attribute, it is generally more definitive than the cyber realm. Cyberspace provides a level of anonymity that in today“™s age is difficult to achieve in the physical realm.
Cyber bullying or harassment could appear to come from a particular email address or even IP address. However, criminals that utilize cyberspace are perfectly adept at hijacking valid credentials to carry out their misdeeds.
In these instances, arbitration would have significant advantages over court procedures. Individuals who are accused of being perpetrators of sexual harassment (but are in fact innocent) would suffer less through an arbitration process.
While victims of sexual assault and harassment certainly deserve unfettered access to court procedures, information and evidence in the cyber domain can prove incredibly complex. In the realm of cyberspace, the Franken Amendment has the potential to make more victims, despite its good intentions.