Why things you think are private, aren’t.

Time Commitment: 7 minutes if you try to count the commas while you read. 5 minutes otherwise.

The post is about avoiding even the appearance of wrongdoing, not about doing the wrong thing without getting caught. Seriously, be good guys! :)

I recently had an exchange with a friend about using the content from a third-party site to populate our own app we’re working on. I’m going to leave the copyright implications aside for now and just talk about the conversation itself.

It went something like this:

Him: Our site is empty right now, and their site is full of the data we need. We should consider partnering with them. I already wrote a script that can parse their data to use for now. “I’m guessing this is completely illegal, but I kind of don’t give a s@#*.” (actual quote)

Me: I doubt we can use any of that data.

Him: How would they ever know?

Let me first assure you that my friend on the whole does care about being a good guy. And even in this situation, his language belies a general respect for others and their rights, and in this case the data probably doesn’t carry much, if any, copyright protection anyway. Still, we eventually agreed that it was best not to use the third-party data, and decided instead to populate our site the old fashioned way (inputing seed data ourselves and incentivizing users to help). But let’s say hypothetically the owner of that other site saw our content, suspected we did scrape it from their site, and sued. What would happen then?

Without getting too bogged down in civil procedure (because even most lawyers hate it), if the suit were to survive some preliminary steps, the discovery phase would begin, where each party can request and compel the other party and relevant third parties to share their documents, records, and all sorts of evidence they probably don’t want to give, including access to computer files and emails. It’s a hassle, and it feels intrusive (because it is). In our case, we would probably be compelled to give them a copy of this conversation, which happened over email (along with this post too, now that I think about it). We wouldn’t look good in the eyes of a judge, and it could make the case more likely to go trial despite us not really doing anything wrong. We’d probably end up having to settle, not because we’re liable, but because it would probably be cheaper than defending the suit.

The takeaway

Whenever you are communicating, assume whatever you say will be discovered by any interested party. The assumption might not change what you say one bit, or may even inspire you to embed easter eggs that seem like they’d be fun to explain in a deposition (if so, I’d love to hear about it). But you should be cognizant that the law provides the means for an adverse party to discover your “private” communications, including many things otherwise considered confidential, either because your confidentiality agreements don’t withstand a subpoena, or they explicitly create an exception for lawful requests from a court or government authority. And whatever is discovered may make you look bad. And you never want to look bad if you can avoid it.

Also remember, there are rules against spoilation of evidence, which normally make it worse for you to conceal or destroy evidence than if you just gave the other party what they are entitled to. There are also certain privileges to consider that prevent certain evidence from being discovered or brought against you, but that topic deserves its own post.

So did anyone actually count the commas?