Canadian business mogul Kevin O’Leary has a new favorite hobby: threatening college students with the destruction of their livelihoods “forever” if they’re caught at pro-Palestine protests. The “Shark Tank” judge says he will use omnipresent “1080p” and “4K” surveillance cameras capable of “retinal scanning” whose footage will be analyzed by “AI protocols” and made readily available to employers through background checks on the “deep web” and the “dark web.”
“I know who you are,” O’Leary says. For the rest of their lives, the protestors “won’t know why they didn’t get that job,” he says. “I won’t be hiring any of them.” When asked whether it’s fair for a single act hang over someone’s head for the rest of their life, his answer? “ Life is hard, then you die.”
Gen Z is already suffering from a mental health crisis thanks to by Big Tech. The last thing they need are villains like O’Leary giving them nightmares about how they’ll be haunted “forever” by some Orwellian regime of technofascist corporate blacklisting. But anyone O’Leary has managed to spook should remember that this is the same guy who recently said he will never invest in New York again, and that New York is “becoming a flyover state,” because of Letitia James’s civil suit against Donald Trump. New York will be fine, and so will you.
For one thing, much of what O’Leary has been saying about the present power of facial-recognition technology and “dark web” background checks sounds like he got it from those scenes in action movies where someone says “enhance.” But I’ll leave that fact-check to the tech buffs. I’m just a lawyer, so I just have two points to make (neither of which are legal advice).
First, laws already exist to protect Americans from the type of oppressive hiring practices O’Leary is promoting. It sure sounds like he’s been breaking some. For instance, under the federal Fair Credit Reporting Act (FRCA), an employer can’t reject a job applicant based on a third-party background check without giving the applicant a copy of the report so he or she can dispute its accuracy and completeness with the company that created it. And if the job’s salary is below $75,000, the FCRA prohibits a background check company’s report from including any negative information that is over seven years old, except for records of criminal convictions.
There are also some state and local laws that stop employers from holding applicants’ politics against them. Major examples are in California, which bans any discrimination based on an applicant’s political activities or affiliations, and Seattle, which makes “political ideology” a protected class like race, sex and religion.
Second, the extraordinary cruelty of O’Leary’s position — the injustice of which he seems to embrace — should spur an urgent public push for even stronger laws against such schemes. For a huge swath of Americans, the constitutional right to free speech is useless without privacy laws that free their speech from employers’ surveillance. A 2016 Pew survey found that Americans try to hide their online behavior from their employers, supervisors and co-workers over twice as often as they try to hide it from the government.
What does that say about what’s really constraining Americans’ speech these days? We separate church and state to stop them from interfering with each other — it’s time to do the same with the job market and the marketplace of ideas.
America already has legal and policy frameworks for new “Stop Kevin O’Leary” laws to build on. The FCRA starts by stating “there is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.” For that exact reason, the FCRA should be amended to further restrict background checks’ disclosures of job seekers’ political activities. We could start by simply raising the $75,000 salary limit so that dirt gets scrubbed from more background checks after seven years.
New reforms can also draw inspiration from “ban the box” laws that several states and municipalities have enacted to curtail an employer’s consideration of an applicant’s criminal history. Those laws embody a strong public policy in favor of second chances and fresh starts. California, for example, even prohibits most employers from using a person’s registration as a sex offender for any employment-related purpose.
Most Americans would likely agree that similar legal protections should be afforded to those with a history of nonviolent protest against a military campaign that the sitting president has called “indiscriminate bombing” and “over the top.” “There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s gotta stop,” Biden declared at a February press conference. Earlier this month, Secretary of State Antony Blinken said the Israeli forces need to “get out of Gaza,” which could have been a line in Macklemore’s protest anthem. There is nothing uniquely odious about pro-Palestine protesters that would warrant their uniquely permanent banishment from the workplace.
Ian Weiss is an attorney specializing in civil commercial litigation in New York City.
