[HCoop-Misc] Ragingwire Telecommunications

[Nathan Kennedy]

To all HCooperators,
Every now and then I bring up current issues relating to the cooperative
and internet hosting sectors.  I hope I do not bore you too much, but I
would like to tell you about an important development yesterday regarding
RagingWire, a company that operates a 200,000 square foot
datacenter/colocation facility in the Sacramento, California area.  I seem
to recall its name being mentioned when we were searching for colos,
although it did not make it into the final list of candidates.

In any event, I'll need to provide a bit of a background introductory
civics lesson for those international members or others who may not be
familiar with the intricacies of US law--feel free to skip the next three
paragraphs.  The USA is a federal system, with the federal government of
the United States of America as an overlapping umbrella over the
independent government structures of the fifty states.  Most crimes are a
matter of state law, but there are federal crimes also.  In particular,
various drugs are separately illegal under both state and federal law;
possession of marijuana is illegal under the United States Code and under
the criminal statutes of every state.  You can be prosecuted for
possessing marijuana by the federal government anywhere, and by the state
where you happen to live.  The vast majority of enforcement other than
major trafficking is done by state and local police prosecuted under state
law in state courts.

Now, some years ago California voters used a ballot initiative to pass a
law there allowing doctors to prescribe medical marijuana as treatment for
genuine illnesses without retaliation, and giving patients and caregivers
a defense to prosecution under state law for possession of marijuana if
they have a valid doctor's prescription.  Since then several other states
have passed similar laws.

The federal government has taken a position that marijuana is still
illegal for patients in these states under federal law, and has continued
to enforce these laws by busting up medical grow operations and
prosecuting patients in federal court.  Since the federal government
doesn't have the resources to prosecute much local crime, the vast
majority of patients prescribed cannabis in California are unmolested by
the authorities, but there have been a few high-profile cases.  For
instance, Peter McWilliams, who wrote a lot of groundbreaking, very funny
and popular books on personal computing back in the 70s and 80s (I have
several).  He pretty much invented the idea of a humorous computer manuals
for the end-user long before the concept of "For Dummies" came along (and
they were much better written).  He also was terminally ill with AIDS back
when the antivirals weren't so great.  He smoked pot with a doctor's
prescription to counter the nausea from the drugs, was prosecuted by the
federal government even though it was legal under state law, and died in a
jail cell choking on his own vomit.

Anyway, civics lesson over.  Fast-forward to 1999.  Gary Ross lives in
California.  He hurt his back in the Air Force and receives partial
disability pay, suffering from chronic pain.  After trying several drugs
his doctor recommends that he try cannabis, which he does.  In 2001 he is
offered a job by RagingWire, which he accepts.  Shortly afterwards, he is
required to give a urine sample and tests positive for THC.  He shows the
board that he has a legal prescription for his disability; the board
thinks about it, then fires him for using pot.

In turn, Ross sued RagingWire for wrongful termination based on disability
discrimination.  RagingWire hires the best labor law firm in the country,
and spent the last seven years on litigation and appeals--in all
likelihood, spending much more on the litigation than whatever Ross's
salary would be.  Yesterday, the Supreme Court of California handed down
their decision, which is reported at
http://www.courtinfo.ca.gov/opinions/documents/S138130.PDF

The court found in favor of RagingWire.  That isn't really what disturbs
me--it's reasoning on the law is sensible enough--so much as the way
RagingWire has behaved in this matter.  Medical marijuana is not a big
issue on my radar.  I'm not a fan of the weed and I'm glad I don't have a
physical condition where I was in the dilemma of having to choose between
that and other options that don't work as well.  What bothers me is this
kind of treatment of an employee by a internet company and the message and
precedent set by this action.

So anyway, I have written up a little open letter that I would like to
send to RagingWire.  Although I talk about my role at HCoop I make it
clear that it is my own opinion only, however if anyone else would like to
add their name to it please send me an email.  Or reply to this list if
you have any feedback about this letter before I send it.  It would be
good if companies like RagingWire understand that even if they win in
court, these kinds of antisocial actions have economic consequences.

-ntk

Note, obviously this is "published" now since this list is open, but
consider the following a draft until I submit it to RagingWire.

Letter:

To the Directors and Officers of RagingWire Telecommunications, Inc.,

I am a founding member, director, and officer of HCoop, Inc., an internet
hosting cooperative that provides flexible managed hosting solutions to
its member-owners at cost.  In that capacity, I participate in all major
purchasing and business decisions.  Of course, our most important outside
relationship is with our colocation providers who provide us with our
physical plant, power, network connections, and bandwidth.

So the news of _Ross v. RagingWire_ is of enormous interest to me.  In
searching out business partners, the usual metrics of price, terms,
service, rates, power, bandwidth, peering, latency and associated
guarantees are the starting point.  But given the complexity of a
colocation investment and the breadth of the market, in the end it is
intangibles that seal the deal.  Besides my duties at HCoop, I am also a
law student.  Having read the Califorinia Supreme Court's opinion on _Ross
v. RagingWire_, I can tell you that there is such a thing as being right
on the law, winning in the courtroom, and still being wrong in your
position.

You were ably represented by Jackson Lewis, one of the finest employment
law firms in the nation.  The case was thoroughly briefed, and the court's
exposition and application of the law was sound.  But at the end of the
day, what happened is that you interviewed and hired a disabled air force
veteran on the merits, and then threw him out on his butt because he was
taking prescribed medicine speciifically authorized by state law.  And
then, for good measure, you litigated it up all the way to the Supreme
Court to make sure that anyone in Mr. Ross's position doesn't have a leg
to stand on.

This is of course your right, but that doesn't make it right.  What you
did to Mr. Ross alone would be enough nearly enough to eliminate
RagingWire from consideration outright on ethical grounds alone.  But it
goes beyond that.  RagingWire argued that it was merely complying with
state and federal Drug Free Workplace Acts.  This is completely illusory. 
As the dissent in _Ross_ points out, neither act applies to drug usage
outside the workplace--additionally, neither requires either
drug-screening or mandatory termination policies, and RagingWire has
provided not a single example of a contractor losing a government bid due
to an employee in Mr. Ross's position.

This points to the obvious conclusion.  If this is how you treat your own
employees, how will you treat your clients; in particular, how will it
respond to onerous, overbearing, or unlawful government conduct?  You are
willing to sue your disabled employee all the way up the Supreme Court to
fire him for taking his meds because you are supposedly afraid that there
is some chance it might lose a government contract that it might otherwise
get--without so much as a prod from the government to do so.  How could I
as a customer trust that you would not cave in to the most unreasonable
and unlawful government demands to the detriment of my company and my
clients, or, as you did with Mr. Ross, preempt government, act as your own
investigative and judicial force?

The costs of litigating this case were clearly much greater than any risk
of lost future opportunities.  Moreover, I and others consider the values
and employee morale of all prospective providers, because it is the right
thing to do and because these companies are the most healthy and provide
the best service.  I would never partner with a company that is bleeding
revenue on these kinds of purely voluntary crusades, and until such time
as RagingWire disavows this case and takes remedial action, I will always
have to advise my colleagues and associates to do the same.

This opinion is solely my own and does not represent the view of HCoop, Inc.

Sincerely,
Nathan Kennedy