Calling all lawyers: Chapter 1

Triathlon Forum
1

I’ve got two legal issues/questions with which I’d appreciate your input. This is the first one (the second is entirely unrelated to this one).

I’m going to be asking forum readers to participate in an online questionnaire. It’s going to be entirely voluntary, and virtually anonymous. The one thing we will know about respondents is we’ll know what IP address they use at the moment of participation, and we’ll only know that because we’ll want to limit the number of responses per IP. otherwise, there will be no identifiers attached to this questionnaire, we’ll not seek to identify the respondents, and we’ll not share any information on any individual (which, again, will be limited to knowing the IP address of the respondent).

The questionnaire will ask very penetrating questions, including but not limited to ethnicity, religious affiliation, and sexual orientation. the purpose of the questionnaire is to provide a baseline for a series of articles we intend to publish on our sport and its adherents. Among other things, I’m interested in the degree of accessibility into triathlon. Do gays feel this is an accessible sport? Do blacks, hispanics, women, young people, old people, christians, moslems, atheists? Are there barriers to entry? Are there groups or classes that find it hard to knit themselves into this community?

There is one element that will not be anonymous. Separate from the questionnaire will be a invitation to those Slowtwitch readers who are part of a minority that is not often seen or acknowledged in triathlon – gays, blacks, moslems, let us say – to share in prosaic form (essay style), for publication, their own experiences as they relate to training and racing in this sport. Their responses may still be shared with the greater readership anonymously, but I personally would have greater access to their identities, since they’ll be writing me using a mail client.

My legal question refers to the questionnaire itself. Are there any laws or perils of which I’m currently unaware that would cause me to want to rethink the questionnaire, or are there guides that I should follow in its construction or execution? Likewise with my invitation to share for publication personal experiences?

All kinds of folks other than the sorts of people I’m asking for help tend to answer these calls for help, whenever I ask for them. I’m hoping that the non-lawyers will refrain from piping up here, unless they’ve got absolute knowledge on this issue.

Thanks in advance.

2

I’m hoping that the non-lawyers will refrain from piping up here, unless they’ve got absolute knowledge on this issue.

You want people who are not knowledgable on a certain issue to refrain from posting on it? Do you know anything about this forum you run :wink:

3

Dan –
(1) You can ask anybody you want any question you want.
(2) You have no obligation to keep any information private or anonymous unless you promise to do so.
(3) If you promise to keep such information private or anonymous and you fail, you may be subject to liability.

I would offer the questionnaire and state that the only identifiable information you are collecting is the IP address.

The same is true for the essay piece.

Good luck.

4

Not sure what you IT resources are, but…

You could very easily use the IP verification to eliminate multiple responses, and do the essay portion, without ever having the two pieces of information connected. This may make people more likely to respond and give you better information.

Basic layout is that when a survey is submitted all survey data goes to one data base and the IP goes to another. If the IP already exists then the primary survey data is disregarded and you can have a message saying so. This way you have all of your data separate from anything that could identify someone.

Completely separate from the legal perspective, but from the technical perspective, you just don’t need to go there, and it would likely give you better (more complete data).

-corin

5

I second what Brick said, but would add that you can’t really harm yourself by putting a disclaimer in bold, italic, capital, large font – up front – that let’s the responder know that his or her participation is voluntary and that the answers will not/cannot be kept private.

Edit: You might also have a waiver of liability and require that they check the “I agree” button in order to proceed with the survey.

6

slowman:

brick has got it exactly right

Tom
.

7

You sir are either a very very bad lawyer or a fake! Never in the history of law has a real lawyer answered a question in so few words. Not to mention the lack of any mention of “it depends…”

:slight_smile:

Kevin

8

Dan: As a lawyer licensed to practice in 5 states I cannot answer the question because I only engage in the unauthorized practice of medicine on this forum. So, OldSlowDoc should answer this question. Okay, that wasn’t funny.

First, a disclaimer. Anyone can sue anyone for anything and then there are the resulting defense costs. My favorite example is the Ohio judge that let some woman sue her surgeon because her breast implants had reduced the effectiveness of her ESP. He let that go to the jury. In California – okay, that’s life (e.g., the Happy Cow commercial suit). But Ohio - The Midwest – The rustbelt? It made my blood run cold. And, of course, there is the current DC matter with the lawyer and the dry cleaner that is totally embarrassing but as a businessman you know these risks.

I am not aware of any federal statutes pertaining to this issue although you should have your lawyer do a LEXIS search to make sure. That said, full and fair disclosure of how the information will be handled and used is a good thing along with a box to mark that they accept those terms and conditions before they get to the survey. A waiver or release of the information for you to do with as you deem appropriate on an anonymous basis would also be prudent. Best.

9

Danno’s suggestions would certainly add some additional protection but I suspect would have a chilling effect on some participants.

Danno - What do you consider the cost-benefit to such a disclaimer and/or waiver? Do you see any substantial increase in risk if the only statement regards the collection of the IP address?

10

I don’t see a problem with the questionnaire. I would recommend some sort of warning regarding the use of answers and/or scope of use of information gathered (IP Addresses for example).
As long as the participants are informed and voluntarily giving information, you should be OK.

11

“Not to mention the lack of any mention of ‘it depends…’”

you gotta pay money for “it depends.”

i’ve employed a lot of lawyers. in truth, i’ve often wished i’d gone the way of being a lawyer. it’s a fascinating profession. i have a lot of respect for them. “it depends” is a testament to the fluidity of law. and, of course, there is more than simply what’s legal. there’s the likelihood of getting sued even if you to everything right, there’s the likelihood of losing even if you do everything right, and there’s the financial calculation associated with every one of those possibilities.

the best lawyers i’ve ever employed are not just masters of the law, but tacticians, financial counselors, actuaries, wordsmiths. lawyers are typically the most interesting people i know.

12

I don’t understand what gave you pause about this in the first place . . . ?

13

And, of course, there is the current DC matter with the lawyer and the dry cleaner that is totally embarrassing but as a businessman you know these risks.

okay, $65 million for misplacing a pair of pants was unreasonable. but, after sleeping on it the guy did reduce his claim to $54 million. it’s nice to know sober, thoughtful claimants can meet in the middle.

14

Danno’s suggestions would certainly add some additional protection but I suspect would have a chilling effect on some participants.

Danno - What do you consider the cost-benefit to such a disclaimer and/or waiver? Do you see any substantial increase in risk if the only statement regards the collection of the IP address?

Fair point, but I’m not sure that the average person inclined to take an online survey would think twice about clicking the “I agree” button. I do it all the time when signing up for certain services, and most of the time, I don’t even read the “Terms and Conditions” or “Waiver,” and I actually know better!

I don’t think the risk would be too great if the statement pertained only to the IP addresses, but I could see a potential plaintiff claiming that Dan was at fault if somebody managed to get his/her personal info by using his IP address somehow. My personal opinion (which is worth no more than anyone else’s) is that you won’t see an appreciable decline in participation if you use a broad waiver/disclaimer rather than one tailored to just the IP addresses, and you’re covered a bit better by just blanketly stating that you can’t guarantee that any any of the information will remain private.

15

" I don’t understand what gave you pause about this in the first place . . . ?"

i am by nature the sort of person who spends half his time looking behind him. my first priority in everything i do, in every category of my life, is to guard against the blind side and the catastrophic loss.

16

“lawyers are typically the most interesting people i know.”

Wow, to quote Mr. Demerly, THAT’S HUGE!

17

Clearly I’m not a lawyer, but I don’t see what possible liability you could incur. shrug

18

That’s what the drycleaner with the $45 million lawsuit on him thought as well…

19

“you’re covered a bit better by just blanketly stating that you can’t guarantee that any any of the information will remain private.”

what if we had a paragraph that expressed a sort of privacy statement regarding this questionnaire, and in it we described with technical specificity the lengths we were taking to protect the anonymity of respondents, but that we can’t protect against that which we cannot foresee? it would be a “best efforts” statement, with the acknowledgment that there may be some risk of unknown magnitude regarding this element of anonymity.

20

Dan, it appears that you will be sending email invitations regarding the questionnaire so you may want to check out the Federal Trade Commission’s Can Spam Act site.

http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.shtm

Cheers!