New Name For Bad Idea: “Information Escrow”

No decent person will shed a tear for a guy who is guilty of sexually molesting or raping a woman. When the man admits he did it, whether it happened yesterday or 20 years ago, we can take comfort in knowing the allegation is true, provided he didn’t fudge the confession because his publicist told him that was the smart way to cop a plea.

But the wave of feelz has a way of catching decent guys who should know better. At the Atlantic, Conor Friedersdorf caught the wave.

A scholarly article published in 2012 by Ian Ayres and Cait Unkovic defined the challenge: Many are reluctant to be the first person to accuse someone of sexual harassment, in part because the accused “routinely responds by trying to impeach the credibility of the accuser.” Yet first accusations often lead to more accusers coming forward. That’s a dynamic that tends to protect recidivist harassers.

There’s a cute little trick in that paragraph, denigrating the defense of “trying to impeach the credibility of the accuser.” If an innocent person is accused, what else would he do? Casting this as some rhetorical negative is nonsense. When a person lies about the commission of an offense, there are two basic options: prove the negative or impeach the liar’s credibility to show they’re lying. This is a bad thing?

But also buried in the paragraph, and glossed over, is another problem: “Many are reluctant to be the first person to accuse someone of sexual harassment.” So what? Is the solution to many’s reluctance to gerry-rig the rules of engagement, or tell them to stop being reluctant and deal with it? Rather than require feelings to conform to a system that allows for a rational determination, is the solution to reshape the system to conform to the fragile feelings of the reluctant victim?

Apparently, that’s exactly what Conor suggests, under the cool new name of “information escrow.”

What if a system of “information escrow” existed instead?

We propose the use of an allegation escrow to allow victims to transmit claims information to a trusted intermediary, a centralized escrow agent, who forwards the information to proper authorities if (and only if) certain prespecified conditions are met. The escrow agent would keep harassment allegations confidential, unutilized, and unforwarded until the agent has received a prespecified number of complementary harassment allegations concerning the same accused harasser. For example, if the escrow agreement specified the accumulation of two additional allegations as a triggering event, then the agent would wait until the escrow had received three separate allegations concerning a particular alleged harasser before forwarding the information to specified authorities and initiating a complaint.

Unsurprisingly, this idea has already made its way to college campuses for Title IX complaints.

A variation on that idea is already being used by the nonprofit organization Callisto, a third-party reporting system for victims of sexual assault on college campuses.

The safety-in-numbers approach is a particularly problematic one. Mattress Girl had a couple of her friends lodge false complaints against Paul Nungesser at Columbia to beef up her false claim. The ideas is that one person might not be believed, but three? So all you need is to co-opt a couple of friends and, boom.

Then there’s the issue of timing. Someone claims you “rubbed against her” three years ago by the water cooler. Let’s assume, for the sake of argument, it happened, although it was accidental and you never realized it. If something is said at the time, you can deal with it. Years later, it’s just some crazy claim you know nothing about; can’t disprove, can’t even remember.

It could be that the complaint is real and justified, but it could also be nonsensical oversensitivity that could be addressed swiftly. Although today, there’s a good chance that it would nonetheless come back to haunt a man, perhaps cost him his job, anyway, since neither proof nor opportunity to respond matters when the wave washes over you.

And then there are the vagaries. “Joe raped me.” Okay. So what does that mean? Did he hit you over the head, throw you in a dark alley and rip off your clothes, or did the two of you have drinks, consensual sex, and then after he broke up with you and you cried to your gender studies prof, decided it was rape instead of love? The pop phrase of the day is “sexual misconduct,” which means absolutely nothing. Conclusory phrases are so much easier than actual facts, which don’t always sound as awful.

But Conor has constructed his own variation on a theme.

It might permit accusers a number of options:

  • Submit a sealed, sworn affidavit to document an instance of harassing behavior in the moment, without deciding to take any further action at that moment.
  • Submit a sworn complaint about workplace harassment that is sealed until some number of other people file similar complaints about the same company or individual, triggering notifications to all the victims.
  • Submit a ticket that alerts an HR department that an anonymous employee, verified to be working at their company, is concerned by an aspect of workplace culture.
  • Submit a ticket that generates a private alert to an individual notifying him or her that an unnamed co-worker asks that they voluntarily change a behavior.

Carefully designed and administered, a system like that might have stopped alleged serial abusers like Roger Ailes and Harvey Weinstein years ago by giving their victims access to a transformative insight: that they were far from alone.

It’s adorable to add in “carefully designed and administered,” as if saying the words is the same as it happening, whatever it actually means. But we’re now into anonymous tickets, so not only do we have all the infirmities that afflict every attempt to circumvent the system, but now we add in the next level of problems. Piss someone off? Not respond to someone’s flirtations? That crazy woman in accounting?

Conor is right that these contortions of basic systems to protect the integrity of complaints while enabling an accused to defend himself might well have stopped “alleged serial abusers.” And random house-to-house warrantless searches would likely stop violent crime too. But we don’t do that in America. The problem is the same contortions would also have snared completely innocent people. It’s not that it’s ineffective, but that it flips our system on its head. Every accused is presumed guilty until proven innocent.*

Key to our willingness to turn a blind and stupid eye to a system necessitated by feelings and excuses is the claim that there are few false allegations, so even though Blackstone’s Ratio is tossed aside, there won’t be too many innocent men thrown under the bus for the sake of women’s feelings. Too bad, so sad, for the innocent guys, but hey, women have been oppressed for so long that it’s time for guys to suffer.

This is why it’s being pounded by the media, despite it being utterly false, that false accusations almost never happen. If an accusation is true, and some obviously are, then they should be tested in the same way that all accusations are tested. Anything less is just an inquisition built to cater to fears and feelings at the expense of due process. When you get caught up in the wave, this might not seem like such a bad thing, until the wave drowns you.

*And, not to belabor the point, but if we can flip the presumptions and burdens in sex claims, there is no reason why the same can’t, and won’t, happen in every other crime.

16 thoughts on “New Name For Bad Idea: “Information Escrow”

  1. JAV

    I can see some bastard seeing this as a way to assault someone, because ‘the first one’s free’. Just another hole in an already sketchy idea.

    1. SHG Post author

      Ironically, imagine some guy pissed at some other guy looking for an anon way to wreak havoc with his life, anonymously pretending to be an abused woman. The possibilities are endless.

  2. Brian Cowles

    An excellent post. If I had encountered Friersdorf’s piece in the wild, I’m not sure I would have caught on to the flaws. Now I’m better prepared for the next one. Thank you.

    1. SHG Post author

      Conor does some great work, and is someone whose writing I greatly admire. This idea, however, is not one of his best.

  3. Joseph

    Random house-to-house warrantless searches are unconstitutional. Databases that connect you with other people are not. Two people who accuse someone of sexually harassing, assaulting, or raping them are just that: two people who accused someone of something, whether they met anonymously through an online service or not. We’re looking at an implementation of an HR system here, the kind of system that always tries to resolve things internally and whose sole job is to protect the company. It’s not referring things to the courts unless someone alleges an actual crime and then it’s in the purview of the courts which ARE required to respect your rights.

    On the off chance that two unhinged people accuse you of something and you’re fired… that’s tragic, and can carry major consequences for your life, but job loss is an everyday happening compared to false imprisonment. You’re not entitled to your job. The list of things you can be fired for range from pissing off your colleagues by doing too much work or not kissing your boss’s ass. Good luck and try to minimize your interactions with insane people at your next job.

    At the end of the day, all systems that catch guilty people rope in innocent people. An anonymously corroborated reporting system raises the burden of accusation ever so slightly. If one in four accusations are false, then the chance that two random unrelated accusations are both false is… one in sixteen. Blackstone didn’t say “sixteen guilty men.”

    1. SHG Post author

      It’s always interesting to see who turns out to be an authoritarian little shit, rationalizing why the innocent suffer is just the price you have to pay. Everybody dies, Joseph. Good people die in car crashes all the time. Criminals murder good guys all the time. So what’s the big deal about a few dying because a cop shoots them for nothing, since cops are there to serve and protect? Your argument is just a variation on the badgelickers, except you’re licking vaginas.

      1. Joseph

        There is no “authority” here. No compulsion. No force. No death. No beatings. No prison. There is only a workplace that decides that if you cheese off enough women you’re out of a job, same as any other group it’s become popular to protect. I understand that to you this might be the same as an authoritarian jackbooted shithole, but for most people it’s a voluntary job. A badge can beat me, jail me, and murder me if the fancy strikes him. The vagina possesses no such mystic powers.

        People who subscribe to Blackstone’s principle know full well that other innocent people suffer when ten guilty men go free. That’s also a price that people have to pay. The fact that you think that extralegal complaints are the hallmarks of the authoritarian state doesn’t change the fact that independent corroboration is useful, which is why along the same lines the anonymized tipline is recognized as useful whether it’s being used to report government corruption, abuse of authority, or a racially hostile working environment despite the fact they can also be fabricated and abused. The injection of sex into the matter changes nothing.

        1. SHG Post author

          On the contrary, there’s Title VII, Title IX, but most importantly at the moment, there’s the mob that demands the witch be burned. And I said you, Joseph, were an authoritarian little shit. You didn’t even get that right. You would have loved the commie blacklists of the 50s. After all, jobs are voluntary.

          1. Joseph

            Novel reinterpretations of VII and IX that compel universities and employers to install practices mandated by the state are their own problem separate from the usefulness of “information escrow.” The injection of the state into the matter is the source of the problem. It says nothing about the merits or demerits of information escrow as a principle.

            The mob is entitled to its opinion. They can scream for the witch to be burned as much as they want. You can call me an authoritarian little shit as much as you want. These unkind words do nothing to me except get me blacklisted among people I had no intention of associating with in the first place. When the government compiles a state blacklist and launching investigations as with the communist blacklists, yes, we will have a major encroachment of state authority on civil liberties. Until then your continual conflation of state “authoritarian” behavior with private “authoritarian” behavior is nothing more than a shitty analogy.

            1. SHG Post author

              They’re only unkind words if you don’t like being called an authoritarian little shit. And if that’s the case, then don’t be an authoritarian little shit.

              Within that morass of words (you’re kinda verbose, Joseph), you have one valuable point: that there is a different between state authoritarianism and private. While the mob is entitled to its opinion, what’s happening at the moment is something I don’t think we’ve ever quite experienced before. That said, ideas like information escrow are specifically designed to invoke laws like Titles IX and VII. So these are mechanisms designed to use law, circumvent due process and compel punishment. That, Joseph, is why they’re authoritarian.

            2. LocoYokel

              What happens when employers start sharing lists and accusations? Pretty sure that would follow because once the list is compiled some one will sue for failing to proactively protect them from that known abuser? How would you like to be made permanently unemployable for anything more than a menial, minimum wage job (and maybe not even that) because you took that parking spot that one person that everyone in the office knows to stay clear of wanted yesterday, or drank the last cup of coffee and didn’t make more?

              Okay, that last item is worth being blacklisted forever over, I know.

              I like the street signs btw.

    2. B. McLeod

      A system that fosters anonymous denunciations can be expected to increase false reporting from ambient levels. The more a denunciation is false and malicious, the more likely that very accuser will also line up “corroborating” denouncers.

  4. Neil

    Conor’s list doesn’t seem much different than a list of accusations that can be checked before letting you board an aircraft.

    1. B. McLeod

      Pretty easy to get along without having to board aircraft. Getting through life with no job and no income could be more difficult.

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