Ashley Madison and Public Policy

“Please help me,” the Ashley Madison subscribers have started arguing in various courts, “this terrible company was negligent and violated our agreement in not protecting my personal information while I was attempting to cheat on my wife!” Something about the prospect of such lawsuits rubs many the wrong way. There is a sense of repulsion that our legal system and tax dollars can be used to settle arguments between companies and subscribers “hacking” away at the fiber of our society.

When I was in law school, I remember Professor Patrick Rohan's fvorite witticisms, one of them stated that citizens can start a business for virtually any reason, except if it is against “public policy,” which is loosely defined as the legitimate interests of contemporary society. We learned that in a rare number of cases, contracts and legal obligations can be voided if a litigant is asking for something against the amorphous concept of “public policy.”  Prof. Rohan continued that a state would not permit someone to operate a business dedicated to the promotion of divorce, for example. The class would laugh, unable to imagine how a business could attempt to do this. Most of us intuitively agreed with the notion that there were some constraints on what people can do chasing a dollar besides what is obviously proscribed by the criminal law. Years later, this led me to wonder how Ashley Madison has been able to operate as a viable business.

The disgraced former CEO of the Canadian Company that owns Ashley Madison, Noel Biderman, has often argued that affairs can help save marriages. A sign in his office proudly stated the comapny's slogan: “Life is Short.  Have an Affair.” Their well-crafted commercials even portray husbands and wives finding each other’s profile and being quite turned on. Ashley Madison’s publicity machine fostered the idea that affairs are an integral spice of life among consenting adults.

Nevertheless, the view that Ashley Madison promotes any public policy falls short, as does any public sympathy for the company and its users from being hacked. This is because the relationship between husband and wife is still the most important social relationship in our society. The institution of marriage was attacked so overtly by a profit-seeking entity, and society appears to be lauding the hackers, and for good reason.

Of course, that mischievous bunch calling themselves “Impact Team,” have illegally cracked into a system and exposed information those cheating on their husbands and wives expected to be secure. This initially exposed one old stereotype as true -- men, an estimated 95% of paying customers, are generally the idiots who would sign up for something so blatantly ridiculous.

Subscribers are suing the company, most using anonymous names, under the theory that their attempts to cheat the one they share a marital bond with has been unfairly undermined. In the civil arena, justice will be well served if Ashley Madison and its subscribers are thrown out of court on the grounds that any agreements between those promoting and seeking affairs should be considered void as against public policy.

In the criminal context, the company will argue that in cooperating with law enforcement, their ability to foster cheating has been immorally compromised. This could naturally lead to prison time in Canada. Moreover, with such a large bounty offered, $377,000 in Canadian dollars, it difficult to see how they will not be turned in, unless they happen to be safely beyond the reaches of Western law enforcement. However, law-enforcement officials often recognize that with an endless parade of daily challenges, the investigation of “certain” crimes receive less attention than others. This particular hack is one the authorities in Toronto and elsewhere may not continuously elevate to a priority over endless stream of work they already have on their plate.

Impact Team announced that they, along with the majority of society, disagree with Ashley’s core mission of arranging extramarital affairs. They even offered Ashley a chance to avoid this mess if they capitulated to the demand to remove the site. Overall, their “mission” has done a lot more harm to the company than a letter to the editor or a call for a boycott.

Importantly, Impact Team’s hack will likely keep people two steps away from this type of site. Potential users lured by enticing ads will now be more prone to thinking twice before voluntarily documenting their personal info in a profile that gets saved in hands of a company whose former CEO and founder, the hackers found, was apparently using his professional e-mail in a way very consistent with the mission of the company.

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