By: Nicole Gram,
The successful 2015 pilot of Callisto in the college setting has proved to be beneficial in encouraging sexual assault victims, who otherwise would have remained silent, to speak up.[1] This success is driving consideration of expanding the application of allegation escrows to employment and political settings.[2] Information escrows contain private information that is deposited with an escrow agent who will release the information only under predefined conditions.[3] Allegation escrows, such as Callisto, connect people who have reported similar problems with the same individual or group and enables them to file complaints together.[4] The escrow provides a mechanism to overcome the “first mover disadvantage” in which the first accuser faces the greatest risk of retaliation or skepticism.[5] It reduces the fear of potential retaliation from the accused harasser and reputational risk since multiple complainants eliminates the “he said, she said” situation.[6] The existence of similar reports of misconduct reinforces the confidence of the victim that their claims are unacceptable acts of harassment.[7]
There are several legal implications to be considered relative to the technology of allegation escrows. Specific to Callisto, the antidiscrimination regulations of Title IX that prohibit gender based discrimination has been interpreted to include sexual harassment. This may cause schools to be discouraged from an escrow that may not inform them until there are reports from multiple parties due to concern about satisfying their obligation to investigate and address harassment when they reasonably should know about the conduct.[8] However, the obligation of schools to investigate all complaints without guaranteeing confidentiality reinforces the value of the escrow in encouraging victims to deposit who might otherwise be reluctant to report by themselves. In the workplace, Title VII requires employers to take an even more active role than schools in the prevention and investigation of sexual harassment.[9] While employers may be concerned about escrows because they don’t always notify the employer of every complaint, there are ways to leverage the escrow as an additional option toward providing adequate harassment reporting mechanisms.[10]
There are additional legal considerations in the relationships between the escrow agent, the depositor and the sponsoring institution or organization. To mitigate privacy and confidentiality concerns, contractual relationships between the escrow agent and the sponsoring organization should be extremely limited, and preferably nonexistent, to avoid employee rights to documents and to separate the sponsoring institution from the escrow reports in satisfying governing regulations.[11] Another area of concern is abuse of the escrows via fake and false reporting. Providing the escrow agent with rights to review the reports deposited to determine whether the content is sufficient and made in good faith by a valid member of the sponsoring organization is a preventative measure to address this.[12] However, the rights of the escrow agent must be administrative only to avoid any liability on their part.[13] Another measure to avoid abuse and protect privacy is to automatically forward matched deposits for investigation without providing flexibility for the matching depositors to collaborate or decide action.[14]
In light of recent media reports of rampant sexual harassment surrounding famous players in the motion picture industry and prominent politicians, there appears to be an opportunity for Callisto beyond the college setting. The manner in which the flood gates have been opened by initial accusers willing to risk retaliation and their reputation supports the value proposition of an allegation escrow. An ancillary benefit is the ability to leverage aggregate data without the specifics of unmatched reports to allow institutions to address systemic issues in particular departments, locations and organizations.[15] The legal issues of antidiscrimination regulations, privacy, liability and abuse via fake or false reporting present current challenges to be overcome via careful construction of contracts and relationships between the key stakeholders of allegation escrows.
[1] See Callisto, What We Do, Callisto: Tech to combat sexual assault (2017), https://www.projectcallisto.org/what-we-do.
[2] See id.
[3] See Ian Ayres & Cait Unkovic, Information Escrows, 111 Mich. L. Rev. 145, 150 (2012).
[4] See id at 147.
[5] See Laura Bassett, How A New Technology Could Help Find The Next Harvey Weinstein, Huff. Post (2017), https://www.huffingtonpost.com/entry/callisto-rape-reporting-app_us_59df86c7e4b0eb18af06d54e?section=us_technology.
[6] See Ayres, supra note 3 at 147.
[7] See id at 161.
[8] See id at 174.
[9] See id at 174 n. 87.
[10] See Ayres, supra note 3 at 176.
[11] See id. at 176-77.
[12] See id. at 178-79.
[13] See id. at 177-78.
[14] See Ayres, supra note 3 at 180.
[15] See id. at 183.
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