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Reforming The Army's Online Policies

 

An Opportunity for Leadership

 
 
   
   
   
   
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The very foundation of what we do depends on trust, and trust depends on the treatment of all Soldiers with dignity and respect by fellow Soldiers and leaders . . . . Without this, our profession is placed in jeopardy, our readiness suffers, and our mission success is at risk.1

The sentiment conveyed above is enduring; it epitomizes core Army values. In an age where electronic communication is commonplace, it is critical to ensure that dignity and respect is maintained offline and online. A harmful communication sent from behind a screen does not trivialize the behavior; the consequences of carrying out acts which flout Army values are the same regardless of the domain—cyber or face-to-face—in which those acts occur.

“It is relatively easy to hurt others when their suffering is not visible and when causal actions are physically and temporally remote from their effects.”2 This is a key reason why Army leaders need to understand how to manage online misconduct. To carry out their responsibilities, leaders need unambiguous and comprehensive regulatory tools at their disposal which they can apply consistently and confidently.

On 25 July 2018, the Deputy Chief of Staff of the Army circulated an All Army Activities (ALARACT) message providing guidance on online conduct applicable to all members of the Army.3 The message reiterated that:

  • There is an onus on commanders and leaders to foster a climate in which members interact with one another in accordance with Army values, where online misconduct is not tolerated, and any reported instances will be addressed.
  • Members of the Army are expected to engage in electronic communication in a manner consistent with values and Army social media policy. Service members should employ the “Think, Type, Post” approach when engaging in communications online.
  • Any misconduct should promptly be reported to the chain of command or to services providing alternative reporting mechanisms, e.g., family support services.

Importantly, the ALARACT highlighted a need for the Army to reinforce professional online conduct through measures such as amending relevant Army regulations and any relevant clauses in Army contracts and agreements.4 The Army has an opportunity to be at the forefront of reform in this area. To that end, what follows are recommendations which would serve to more comprehensively manage online misconduct, including proposed changes to relevant Army regulations, Army contracts, and social media policies.

I. Introduction

The accessibility and ease with which we can communicate using electronic technologies presents legislators and policy makers around the world with challenges surrounding comprehensive regulation and management of negative online behaviors. At an organizational level, workplaces ought to ensure policies prescribe expected standards of behavior, clearly stating that such standards apply equally to online conduct. The Army, as a workplace, has policies addressing the use of electronic communications in place. These policies are premised on adherence to core Army values and seek to ensure that all Army members are treated with dignity and respect. This is reflected in the wording of specific Army regulations (e.g., Army Regulation (AR) 600-20, paragraph 4-19) and broader social media policy.

Recently, the armed forces have grappled with a series of incidents calling into question the efficacy of policies and actions available under the UCMJ regarding evolving manifestations of online misconduct. For example, the high profile “Marines United” scandal of 2017 was a catalyst for the introduction of Article 117a to the UCMJ, which came into effect 1 January 2019.5 It is imperative that those in leadership positions are equipped with effective tools for managing online behavior confidently and consistently. It is equally important for service members to be provided with sufficient guidance on the types of behaviors which “cross the line.” This article considers various ways in which the Army can reinforce the parameters surrounding acceptable online conduct, therein ensuring that prohibitions on the misuse of electronic communications are clear and comprehensive. Part II considers AR 600-20, paragraph 4-19, Treatment of persons, which is paramount to ensuring Soldiers are treated with dignity and respect. Part III refers to AR 25-13, paragraph 3-2, Unauthorized and prohibited uses of telecommunications and computing systems. Part IV identifies the Federal Acquisition Regulation 52.203-13, Contractor Code of Business Ethics and Conduct, as a valuable contract term governing contractor behavior, including online misconduct. Part V provides guidance on how the Army’s social media policy could be strengthened by providing service members with a host of examples of behaviors which violate core Army values, AR 600-20, and social media policy.

II. Army Regulation 600-20, Army Command Policy

Army Regulation 600-20, paragraph 4-19, Treatment of persons, explicitly prohibits behaviors which undermine Army values.6 Soldiers are required to treat each other with dignity and respect. The regulation is punitive. The scope of the provision is broad and should be understood as encapsulating any behaviors which undermine Army values, encompassing both “offline” and “online” conduct. “Bullying” and “hazing” are identified as two specific categories of proscribed behavior. The regulation provides definitions of each to delineate the conduct.

Hazing typically involves conduct directed at new members but is not limited to superior-subordinate relationships. Hazing appears to be characterized by a ritualistic/ceremonial component. It could be one act—as opposed to repetitious acts—that is cruel, abusive, humiliating, oppressive, demeaning, or harmful, and typically has an identifiable end-point. Bullying, on the other hand, is currently defined as repeated “cruel abusive, humiliating, oppressive, demeaning, or harmful behavior, which results in diminishing the other Servicemember’s dignity, position or status.”7 There is no identifiable end-point. It is often characterized as excessive corrective action and always occurs with the intention of excluding another from inclusion in a group.

Although hazing and bullying are two separate and specific categories of proscribed behavior, based on existing definitions they do share certain characteristics. For example, aggressors who engage in hazing or bullying intend to cause the target harm, either physically or psychologically. Moreover, either behavior can be carried out in physical proximity to the target (physically or verbally) or via electronic communication.

A. Bullying

1. Bullying Defined

A notable feature of the definition of bullying provided in paragraph 4-19 of AR 600-20 is its narrow scope. The requirement that the conduct be carried out with the intent to exclude or reject a target from inclusion in a group limits the forms of bullying which fall within the ambit of the definition.

Outside of a military context, exclusion is regarded as one of plethora of manifestations of bullying—offline or online. For example, instances of online bullying which are not necessarily premised on excluding a target from a group, but which clearly violate Army values, include: sending offensive or intimidating messages via technology repeatedly; placing a person’s name on a rating list inviting comment (e.g., “who’s hot and who’s not”); stalking a person using technology (e.g., repeatedly sending a colleague electronic communications which make them fear for their personal safety); logging onto a person’s email account and sending offensive, humiliating, intimidating communications to others; tricking a person into disclosing personal information and then using technology to distribute that information to others; and broadcasting/distributing a private (intimate/sexually explicit) image or film without the subject’s consent.

The bullying definition detailed in paragraph 4-19 may have been drafted to reflect a characteristic unique to a military setting. As a result, however, a Soldier cannot rely on the current meaning to argue that he or she has been the target of bullying unless the goal of the victimization is exclusion or rejection from a group.

It is useful to note that there is no universal bullying definition upon which the Army ought to model a revised definition of bullying. Considering linguistic differences which exist across disciplines and cultures, semantic differences explain the varying conceptualizations of bullying that currently exist.8 However, scholarship examining the nature and scope of bullying informs us of a general international consensus that bullying is a subset of aggression. It can be understood as being a “specific type of aggressive behavior that is intended to cause harm, through repeated actions carried out over time, targeted at an individual who is not in a position to defend him/herself.”9 The following are broadly considered the elements that are necessary to differentiate bullying from mere aggression: repetition (conduct which occurs more than once, as opposed to a single incident); power imbalance (where the offender demonstrates power over the target); intention (conduct must be intended as opposed to accidental); and aggression (conduct involves maliciousness on the part of the aggressor).

The definition provided in paragraph 4-19 does not encompass the above elements in a comprehensive manner. The criterion of power imbalance is not clearly identifiable. Although the definition states that “bullying may include an abuse of authority”10 (indicative of a power imbalance between the aggressor and the target), the current wording does not state that a power imbalance is a necessary element of bullying. The criterion of repetition, although apparent within the stated definition, is not expressed clearly, reference to bullying typically not having “an identifiable endpoint” merely suggests that bullying is repetitious. Only intention and aggression are clearly identifiable within the current definition. In regard to intention, the definition clearly articulates that an aggressor must intend to engage in the negative behavior; accidental conduct is not encompassed. Reference to bullying as “cruel, abusive, humiliating, oppressive, demeaning or harmful behavior” suggests the conduct involves maliciousness and reflects the criterion of aggression. The definition ought to include the marked elements comprehensively to delineate bullying from other types of negative behaviors. Application of a precise bullying definition, premised on elements recognized by scholars researching in the field as critical to delineating bullying from other types of behavior is strongly recommended. This will give greater legitimacy to a bullying provision since a definition that incorporates elements regarded as indicative of bullying is more likely to be regarded publicly as one that seeks to comprehensively regulate legitimate bullying behaviors.

It is also important to note that paragraph 4-19 does not list behaviors which constitute bullying. Soldiers would benefit from practical guidance on the nature and scope of provision by way of examples of both offline and online bullying. An anti-bullying provision should also clarify whether an objective or subjective standard will be applied when determining whether a violation has occurred. An objective standard (“reasonable person” standard) is preferred as this limits the scope for subjective interpretations and fosters consistent evaluations for breach.

Department of Defense Instruction 1020.03, Harassment Prevention and Response in the Armed Forces, effective as of 8 February 2018, includes a well-drafted bullying definition which could form the basis of the Army’s anti-bullying provision encompassed in AR 600-20, paragraph 4-19.11 This definition incorporates the above noted elements critical to a well-regarded description of bullying. It does not limit bullying to conduct carried out to exclude another from a group. It stipulates that bullying is evaluated based on an objective rather than a subjective standard and provides some guidance on the nature and scope of the conduct by listing some examples of prohibited behaviors.12 The DoD definition refers to the fact that bullying can be carried out using electronic communications, thereby capturing both offline and online misconduct.

2. Recommendations

  • The bullying definition provided in DoD Instruction 1020.03 ought to be incorporated into AR 600-20, paragraph 4-19, with some amendments. Its application would demonstrate a consistent approach to bullying across DoD and the Army service branch.
  • The DoD Instruction 1020.03 definition ought to be changed to make unequivocally clear that bullying involves an asymmetric power relationship between the aggressor and the victim; the word “often” should be deleted from the sentence, “It often involves an imbalance of power.”
  • The language used in DoD Instruction 1020.03 should be amended to reflect the provision’s application to the Army.

3. Drafting Guidance

The following is recommended as an updated definition for “bullying:”

Bullying is a form of harassment that includes acts of aggression carried out by a Soldier with the intent of harming another Soldier, either physically or psychologically, without a proper purpose. Bullying may involve the singling out of an individual from his or her co-workers, or unit, for ridicule because he or she is considered different or weak. It involves an imbalance of power between the aggressor and the victim. Bullying can be conducted through the use of electronic devices or communications, and by other means, including social media, as well as in person. Bullying does not include properly directed command and/or operationally required activities or training for those activities such as: physical or mental hardships associated with operations or operational training; lawful punishment imposed pursuant to the UCMJ; administrative corrective measures, including verbal reprimands and command-authorized physical exercises; extra military instruction or corrective training that is a valid exercise of military authority needed to correct a Soldier’s deficient performance; physical training and remedial physical training; and similar activities that are authorized by the chain of command and conducted in accordance with this or another applicable regulation.

The military should incorporate the examples of behaviors constituting bullying (listed at DoD Instruction 1020.03, paragraph 3.4a (1-10)). Listed examples are relevant in an Army context, however, all references to “person” should be changed to “Soldier.” Further, in light of the existing wording of AR 600-20, paragraph 4-19, it would be pertinent to also include the following example as an instance of bullying: “exclusion or rejection of a Soldier from inclusion in a group.” Examples of online behaviors constituting bullying should also be included in any revised definition included in AR 600-20. Such examples should include the following language:

  • Non-consensual broadcasting of a private (intimate or sexually explicit) image or film depicting a Soldier if that person has a good reason to believe it would be kept private. An intimate image depicts the subject’s private areas. Broadcasting means electronically transmitting. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Non-consensual broadcasting of a humiliating photo or film depicting a Soldier. Broadcasting means electronically transmitting. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Stalking a person using technology (e.g., a Soldier repeatedly sends another Soldier electronic communications which makes the recipient fear for his or her personal safety).
  • Placing a Soldier’s name or photo on a rating list inviting negative comment (e.g., “who’s hot and who’s not”) or commenting negatively about a Soldier whose name or photo appears on a rating list. Negative comment includes a demeaning, abusive, or degrading comment. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Logging onto a Soldier’s email account and sending offensive, humiliating, or intimidating communications to others.
  • Tricking a Soldier into disclosing personal information and then using technology to distribute that information to others.
  • Using electronic communications to threaten to physically harm a Soldier.
  • Sending a Soldier intimidating, demeaning, abusive, or degrading messages via electronic communication.
  • Purposely and repeatedly excluding a Soldier from online discussion groups/forums.

These proposed amendments radically reform the way the Army defines and regulates bullying. The changes serve to limit misconceptions about the nature and scope of bullying, making it easier for Soldiers to understand their rights and responsibilities, and easier for those in leadership positions to identify and address misconduct. The amendments also enable arguments for breach to be made more clearly.

(Credit: iStock.com/dan177)

B. Hazing

1. Hazing Defined

As is the case with bullying, there is no universal definition of hazing. A fundamental characteristic of hazing includes exploitation of an asymmetric relationship (e.g., existing members of a group or organization versus newcomers; higher status (rank, grade) members versus lower status members). It involves acts which cause or create risk of physical or psychological harm to the target for the purposes of initiation, affiliation, or admission to an organization. Hazing can be one act; it need not be repetitious. These elements are captured in the current paragraph 4-19 hazing definition.

The existing hazing definition provides guidance on the nature and scope of the conduct by describing acts which constitute hazing in a face-to-face context. However, examples of online hazing behaviors should also be provided to give further guidance as to scope. A comprehensive anti-hazing provision ought to clarify whether an objective or subjective standard will be applied when determining whether hazing has occurred.

Department of Defense Instruction 1020.03 sets out a clear hazing definition which encompasses well understood characteristics of hazing.13 It is structured in a concise manner which limits misconceptions about the nature and scope of hazing. The definition appears to be modeled closely on the Hazing Law enacted in the State of Florida since 2005.14 Specific guidance as to the nature and scope of the conduct is provided by way of examples of behaviors constituting hazing.15 Importantly, the definition stipulates that hazing is evaluated based on an objective rather than a subjective standard and refers to the fact that hazing can be carried out using electronic communications, thereby capturing both offline and online misconduct. This definition could form the basis of the Army’s anti-hazing provision encompassed in AR 600-20, paragraph 4-19.

2. Recommendations

The hazing definition provided in DoD Instruction 1020.03 ought to be incorporated into AR 600-20, paragraph 4-19, with minor amendments. Its application would demonstrate a consistent approach to hazing across DoD and the Army service branch.

Amend the language used in DoD Instruction 1020.03 to reflect the provision’s application to the Army.

3. Drafting Guidance

The following is recommended as an updated definition for “hazing:”

Hazing is a form of harassment carried out by a Soldier that includes conduct causing or creating a risk of physical or psychological injury to another Soldier for the purpose of: initiation, admission into, affiliation with, change in status or position within, or a condition for continued membership in any organization with a nexus to military service. Hazing can be conducted through the use of electronic communications, and by other means including social media, as well as in person. Hazing does not include properly directed command or operationally required activities or training for those activities such as physical or mental hardships associated with operations or operational training; lawful punishment imposed pursuant to the UCMJ; administrative corrective measures, including verbal reprimands and command-authorized physical exercises; extra military instruction or corrective training that is a valid exercise of military authority needed to correct a Soldier’s deficient performance; physical training and remedial physical training; and similar activities that are authorized by the chain of command and conducted in accordance with this or another applicable regulation.

The revised Army regulation should incorporate the examples of behaviors constituting hazing listed in DoD Instruction 1020.03 at paragraph 3.5a (1)-(9). Listed examples appear to be relevant in an Army context, however, references to “person” should be replaced with the term “Solider.”16 Examples of online behaviors constituting hazing should also be included in any revised definition included in AR 600-20. Such examples should include the following language:

  • Using electronic communications to threaten to physically harm a Soldier.
  • Sending a Soldier demeaning, abusive, or degrading messages via electronic communication.
  • Using electronic communications to solicit, coerce, or encourage a Soldier to engage in illegal, harmful, demeaning or dangerous acts.

These proposed amendments make it easier for Soldiers to understand their rights and responsibilities. Further, the changes would serve to better assist those in leadership positions in identifying and addressing misconduct. The amendments also enable arguments for breach to be made more clearly.

C. Other Behaviors

1. “Other Behaviors” Defined

Army Regulation 600-20, paragraph 4-19, prohibits bullying, hazing, and other behaviors that undermine dignity and respect. It is likely that drafters included the broad yet unspecific “other behaviors” category to encapsulate instances of misconduct which undermine dignity and respect, but which cannot be labeled as bullying or hazing. The provision does not list examples of the kinds of behaviors which fall within the scope of the “other behaviors” category or specify whether an objective or subjective standard will be applied when evaluating whether or not a breach of the regulation has occurred.

Notwithstanding the fact that proposed bullying and hazing definitions would encompass a much larger array of misconduct than current definitions allow, not all behaviors will be encompassed. Thus, it is important that paragraph 4-19 continues to include an “other prohibited behaviors” category. To avoid misconceptions or confusion about scope, Soldiers ought to be provided with some guidance. Listing examples of “other” offline and online misbehaviors would provide some clarity. Further, it would be prudent to clarify whether an objective or subjective standard will be applied when determining whether particular conduct violates the provision.

2. Recommendations

  • Amend AR 600-20, paragraph 4-19, to include further specificity surrounding the meaning of “other behaviors.”
  • An objective standard for determining whether a violation of the provision has occurred should be included.

3. Drafting guidance

The following is recommended as an updated definition for “other behaviors:”

A Soldier violates this provision by carrying out, or soliciting or coercing another person to carry out, an act that reasonable persons would regard as undermining dignity and respect. The act can be conducted through the use of electronic devices or communications, and by other means including social media, as well as in person. It is not a violation of this provision to carry out properly directed command and/or operationally required activities or training for those activities such as: physical or mental hardships associated with operations or operational training; lawful punishment imposed pursuant to the UCMJ; administrative corrective measures, including verbal reprimands and command-authorized physical exercises; extra military instruction or corrective training that is a valid exercise of military authority needed to correct a Soldier’s deficient performance; physical training and remedial physical training; and similar activities that are authorized by the chain of command and conducted in accordance with this or another applicable regulation.

The revised definition should include examples of offline and online behaviors which violate this provision. Such examples should include:

  • Playing an abusive or demeaning trick on a Soldier.
  • Spitting on a Soldier.
  • Making an offensive, humiliating, or degrading comment about a Soldier.
  • Coercing a Soldier to engage in a humiliating act.
  • Accusing a Soldier of an indiscretion without due cause.
  • Threatening a Soldier with physical harm.
  • Threatening to broadcast or distribute a private (intimate/sexually explicit) or humiliating image of a Soldier.
  • Threatening to exclude a Soldier from an offline or online group.
  • Using electronic communications to send sexually explicit material to a Soldier.

These proposed amendments serve to limit misconceptions about the nature and scope of prohibited behaviors which fall outside the definitions of bullying and hazing, yet nevertheless undermine dignity and respect. As noted above in the discussion on bullying and hazing, this guidance aims to make it easier for Soldiers to understand their rights and responsibilities and easier for those in leadership positions to recognize and address misconduct.

A violation of AR 600-20 can lead to internal reprimand or punishment under Article 92 of the UCMJ, Failure to Obey an Order or Regulation. Depending on the relationship between the aggressor and the target, the nature and the severity of the particular act(s), misconduct may also amount to other military violations under the UCMJ such as Articles 89, 91, 93, 120a, 117a, 128, and 134. An act may also constitute violation of a federal criminal offense such as electronic harassment,17 electronic threats,18 cyberstalking,19 obscenity,20 or computer misuse.21

III. Army Regulation 25-13, Army Telecommunications and Unified Capabilities

Army Regulation 25-13, paragraph 3-2, Unauthorized and prohibited uses of telecommunications and computing systems, stipulates that Soldiers must not use DoD and Army telecommunications, unified capabilities (UC), and computing systems in an unauthorized manner.22 It outlines prohibitions on the use of Army communication systems at paragraph 3-2c(1)-(7), listing examples of prohibited/unlawful use.

The existing provision requires little change. It offers guidance on scope by referencing uses which reflect adversely on DoD or the Army, detailing use of signature blocks when sending electronic messages and listing examples of unlawful activities carried out using communication systems. To reinforce professional online conduct, the following three amendments are posited:

  • Include “broadcasting of a private (intimate or sexually explicit) image or film depicting another person” in AR 25-13, paragraph 3-2c(1), as an example of misuse of communication systems reflecting adversely on DoD or the Army. This recommended amendment is timely given the recent addition of Article 117a to the UCMJ.
  • Include “broadcasting of material reasonable persons would find offensive, harassing, or menacing” as an example of misuse of communication systems reflecting adversely on DoD or the Army as per paragraph 3-2c(1). The wording of this example is intentionally broad to capture an array of other malicious online misconduct not specifically identified by way of the other examples listed in this paragraph. Given its breadth, it would be prudent to insert this amendment at the end of paragraph 3-2c(1).
  • Amend any references to “electronic messages” to “electronic communications” to more comprehensively govern the use of signature blocks and apply language consistently. See paragraph 3-2c(2).

These proposed amendments serve to strengthen the professionalization of online conduct by clarifying the scope of misconduct encompassed by AR 25-13, paragraph 3-2, ensuring that the means of misusing communications systems are regulated more comprehensively. A violation of AR 25-13 can lead to adverse administrative action. Depending on the nature and the severity of the particular act(s), misconduct may also amount to military violations under the UCMJ, such as Articles 120a, 117a, and 134, and constitute federal criminal offences such as computer misuse,23 electronic harassment,24 electronic threats,25 cyberstalking,26 obscenity,27or child exploitation.28

IV. Federal Acquisition Regulation 52.203-13, Contractor Code of Business Ethics and Conduct

Federal Acquisition Regulation (FAR) 52.203-13, Contractor Code of Business Ethics and Conduct, must be included in contracts between the Army and a contractor where the value of the contract is expected to exceed $5.5 million and the performance period is 120 days or more (FAR 3.1004(a)).29 Where required, it applies to all contract types other than Simplified Acquisition Procedures.

Federal Acquisition Regulation 52.203-13, paragraph (b)(1)-(3), stipulates contractor requirements applicable to all contractors. This includes having a written code of business ethics and conduct; making the code available to all employees engaged in the performance of the contact; exercising due diligence to prevent and detect criminal conduct and promoting an organizational culture that encourages ethical conduct and compliance with the law; and disclosing credible evidence that a principal, employee, agent, or subcontractor has committed violations particularized in paragraph (b)(3)(A)(B). Paragraph (c) (1)-(2) of FAR 52.203-13 imposes further specific requirements on contractors other than those who qualify as a small business concern. Contractors to whom these additional obligations apply must implement an ongoing business ethics awareness and compliance program supported by appropriate training. An internal control system must be in place. This system must be supported by standards and procedures facilitating timely discovery of improper conduct in connection with government contracts and ensure corrective measures are instituted and carried out—minimum requirements are particularized in paragraph (c)(2)(ii)(A)-(G). The substance of this clause extends to subcontractors in subcontracts that have a value in excess of $5.5 million and a performance period of more than 120 days.

No specific guidelines on the contents of a written code of business ethics and conduct are prescribed in FAR 52.203-13. Generally, a contractor’s code of professional ethics and conduct ought to articulate a set of principles and practices which guide ethical and legal decision-making and behavior within the business. As such, a code facilitates self-regulation of a broad range of improper conduct, including criminal acts.

A. General Requirements Imposed on All Contractors

Where FAR 52.203-13 applies, it places an onus on all contractors to exercise due diligence to prevent and detect fraud, conflicts of interest, bribery, gratuity violations, and other criminal conduct. The term due diligence is not defined. In exercising due diligence, a contractor would need to take reasonable steps to prevent and detect criminal conduct, including e-crimes such as electronic harassment,30 electronic threats,31 and obscenity.32 Actions which raise awareness of improper or unlawful behaviors and communicate how improper or unlawful conduct can be reported and will be managed may support the exercise of due diligence in preventing and detecting criminal conduct.

All contractors are also required to “promote an organizational culture that encourages ethical conduct and commitment with the law.”33 This requires a contractor to take proactive measures to foster ethical and lawful conduct within the organization. Communicating workplace policies and conducting training on ethical decision-making and behavioral standards, including responsible online conduct, would support this obligation. Those contractors who take a passive approach may not fulfil their obligation to promote a workplace culture aligned with the core values underpinning the code on professional ethics and conduct.

It is important to note that non-compliance does not automatically prohibit contract payment. An express condition to that effect would need to be incorporated into the contract between the parties.34 However, a contractor’s performance can impact a contractor’s future evaluation of a bid or proposal. Violating the contractor code of business ethics and conduct clause could impact on the contravening contractor’s ability to secure future contract awards.

Contractors who qualify as a small business concern (or contractors who are a party to a contract relating to the acquisition of a commercial item as per FAR 2.101) are not required to implement an internal control system in the manner prescribed under FAR 52.203-13 (c)(2)(A)-(G).35 All other contractors must implement various baseline measures. Even though these measures are not prescriptive (it is up to the contractor to decide how to operationalize requirements), the clause requires a contractor to implement key building blocks of an effective internal control mechanism such as mandating periodic evaluations of the efficacy of a business ethics awareness and compliance program; periodic assessment of the risk of criminal conduct; an internal reporting mechanism; and a system for implementing disciplinary action.

Notably, this part of the provision makes numerous references to “improper conduct” as distinct from “criminal conduct” but does not provide guidance on the meaning of the term for the purposes of the clause. Notwithstanding the lack of a definition, it is safe to assume that improper conduct relates to actions which undermine the spirit of the professional ethics and conduct code but fall short of criminal conduct. Improper conduct encompasses offline and online actions. This means that a contractor is obligated to control for improper online behavior of employees engaged in the performance of a contract.

B. Importance of the clause

Federal Acquisition Regulation 52.203-13 mandates that all contractors formalize principles which govern business practices and behavior in form of a business ethics and conduct code and that contractors take reasonable steps to prevent and detect criminal acts and promote a workplace culture which fosters compliance with the law and the spirit of the code. Including this clause in Army contracts is a critically important control measure at the Army’s disposal which goes some way towards preventing improper contractor conduct, including online misconduct. Where the Army contracts with a party not recognized as a small business concern, FAR 52.203-13 gains even greater significance given the plethora of criteria a contractor is required to implement as part of their internal control system.

The clause reflects a contractor’s contractual duties surrounding contractor conduct including acts carried out via electronic communications. This fosters professional and responsible interactions between parties. Given the importance of the contract term (the value of the term for the Army as a party to a contract), FAR 52.203-13 ought to be included in contracts of any value where practicable.

C. Recommendations

  • Include a definition of the term “due diligence” in FAR 52.203-13 paragraph (a), Definition, which clarifies that the contractor is responsible for doing everything reasonable to prevent and detect offline and online criminal conduct.36
  • Clarify that FAR 52.203-13 should be included in all Army contracts, unless it is not practicable in the circumstances.37 The requirement that the clause must be included where the value of the contract is expected to exceed $5.5 million and where the performance period of 120 days or more remains unchanged.
  • Ensure personnel engaged in the performance of a contract are aware of the implications for breach of FAR 52.203-13. Importantly, a violation of the clause will not automatically give rise to contract termination (will not prohibit contract payment). Those advising on a contract may consider incorporating the clause as an express condition of the contract. Where the clause is not incorporated as an express condition, personnel involved in overseeing contract performance ought to be meticulous in recording the details surrounding any violations. Any violations may be taken into account should the contractor bid on future Army contracts.

Implementation of the recommendations will be most effective where those in leadership positions raise awareness about the purpose and application of the clause, as well as awareness about how the clause can protect Army personnel engaged in the performance of a contract from contractor misconduct, including improper behavior carried out using electronic communications.

V. Army Social Media Policy

The ease with which real time global interactions occur via social media provides users with an unparalleled communication platform. Reasons for embracing institutional adoption of social media include improving institutional transparency, sharing operational lessons, recognizing achievements of members and increasing opportunities for service members to connect and interact with other military professionals. On a personal level, use of social media provides service members and their families with instantaneous connectivity. Notwithstanding these advantages, the challenges surrounding misuse and operational security are numerous and require the all branches of the armed forces to control how members communicate through electronic media. The Army has a publicized policy which regulates how Army members use social media.38

The Army’s Social Media Policy is published on the Army’s social media website.39 Numerous useful links to relevant policy documents are easily accessible. User-friendly information provided on the Soldiers and Families webpage clearly communicates a key message to Soldiers: think about whether the contents of an electronic communication violates the UCMJ or Army values before the material enters the online domain. The maxim “Think, Type, Post” lies at the heart of the Army’s Social Media Policy. Soldiers are reminded that online misconduct carried out whilst on or off duty may violate AR 600-20 and is punishable under the UCMJ. The website also provides guidance on political activity and DoD support to political campaigns. Further, basic information addressing how social media posts could compromise operational security is presented in a clear manner by providing safety and security tips. The policy also addresses what Army members need to bear in mind in regards to social media posts containing information on the death of a Soldier or other service member.

In the pursuit of further professionalizing online conduct, Army members may benefit from an expanded discussion on “Online Conduct—Think Type Post.” To this end, descriptions or examples of negative online behaviors that undermine dignity and respect and violate AR 600-20 would be useful.40

The Army’s social media policy section “Online Conduct—Think, Type, Post” should be amended to provide further guidance on online behaviors which violate the policy as well as AR 600-20. Additional information may be best placed below the existing content published on the Army social media policy website. Further guidance that could be added to the social media policy includes examples of behavior that constitute online misconduct, undermines Army values, and violates AR 600-20, such as the following:

  • Non-consensual broadcasting of a private (intimate or sexually explicit) image or film depicting an Army member if that person has a good reason to believe it would be kept private. An intimate image depicts the subject’s private areas. Broadcasting means electronically transmitting. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Non-consensual broadcasting of a humiliating photo or film depicting an Army member. Broadcasting means electronically transmitting. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Stalking an Army member using technology (e.g., an Army member repeatedly sends another person electronic communications which makes the recipient fear for his or her personal safety).
  • Placing an Army member’s name or photo on a rating list inviting negative comment (e.g., “who’s hot and who’s not”) or commenting negatively about an Army member whose name or photo appears on a rating list. Negative comment includes a demeaning, abusive, or degrading comment. One act is sufficient to constitute online bullying given the public nature of such material (an act is repetitive by virtue of the public forum in which it occurs).
  • Logging onto an Army member’s email account and sending offensive, humiliating, or intimidating communications to others.
  • Tricking an Army member into disclosing personal information and then using technology to distribute that information to others.
  • Using electronic communications to threaten to physically harm an Army member.
  • Sending an Army member intimidating, demeaning, abusive, or degrading messages via electronic communication.
  • Purposely excluding an Army member from online discussion groups/forums.
  • Using electronic communications to threaten to physically harm an Army member.
  • Sending an Army member demeaning, abusive, or degrading messages via electronic communication.
  • Using electronic communications to solicit, coerce, or encourage an Army member to engage in illegal, harmful, demeaning or dangerous acts.
  • Threatening to broadcast or distribute a private (intimate/sexually explicit) or humiliating image of another Army member.
  • Threatening to exclude an Army member from an offline or online group.
  • Using electronic communications to send sexually explicit material to an Army member.
  • Liking, linking, or sharing social media posts which undermine Army values.

These proposed amendments serve to strengthen the professionalization of online conduct by clarifying the scope of online misconduct which violates Social Media Policy.41 The amendments provide Army members with pertinent examples of prohibited behaviors (which violate Army values as well as AR 600-20) to enable members to more clearly understand which behaviors cross the line. The information could be presented in form of a user-friendly chart or table for ease of reference on the website.

VI. Conclusion

In an era where acts and transactions oft occur via electronic medium, it is critical to ensure online misconduct is minimized. The Army has identified a need to further professionalize online conduct and, to that end, implement measures which will more comprehensively regulate how Army members interact in the online environment. In line with core Army values, all Army members are to be treated with dignity and respect both offline in the physical world and online in the cyber domain.

Following a review of relevant Army regulations, clauses comprising Army contracts, and Army social media policy, a series of recommendations for reform are posited by way of this article. The proposed amendments to AR 600-20, AR 25-13, FAR 53.201-13, and the Army’s social media policy include drafting guidance designed to assist Army leadership in crafting additional or revised content in a meaningful way. Noted recommendations aim to provide those in leadership positions with clear and comprehensive means to facilitate the management of online misconduct and aim to provide Soldiers (and, where relevant, contractors and Army Civilians) with concise guidance as to acceptable behaviors, mores, or norms. The Army has an opportunity to be at the forefront of reform by reinforcing professional online conduct expediently. TAL

 


Dr. Langos is a senior lecturer at the University of Adelaide, South Australia. She was a visiting professor at TJAGLCS in Charlottesville from June 2018 through January 2019.



Appendix A. Army Regulation 600-20 Paragraph 4-19

4–19. Treatment of persons. The Army is a values-based organization where everyone is expected to do what is right by treating all persons as they should be treated—with dignity and respect. Hazing, bullying, and other behaviors that undermine dignity and respect are fundamentally in opposition to our values and are prohibited. This paragraph is punitive. Soldiers who violate this policy may be subject to punishment under the UCMJ. Whether or not certain acts specifically violate the provisions of this paragraph, they may be inappropriate or violate relevant civilian personnel guidance. Commanders must seek the advice and counsel of their legal advisor when taking actions pursuant to this paragraph.

a. Definition.

(1) Hazing. Any conduct whereby a Servicemember or members regardless of service, rank, or position, and without proper authority, recklessly or intentionally causes a Servicemember to suffer or be exposed to any activity that is cruel, abusive, humiliating, oppressive, demeaning, or harmful. Soliciting or coercing another to participate in any such activity is also considered hazing. Hazing need not involve physical contact among or between military members or employees; it can be verbal or psychological in nature. Likewise, it need not be committed in the physical presence of the victim; it may be accomplished through written or phone messages, text messages, email, social media, or any other virtual or electronic medium. Actual or implied consent to acts of hazing does not eliminate the culpability of the perpetrator. Without outside intervention, hazing conduct typically stops at an identified end-point.

(2) Bullying. Bullying is any conduct whereby a Servicemember or members, regardless of service, rank, or position, intends to exclude or reject another Servicemember through cruel, abusive, humiliating, oppressive, demeaning, or harmful behavior, which results in diminishing the other Servicemember’s dignity, position, or status. Absent outside intervention, bullying will typically continue without any identifiable end-point. Bullying may include an abuse of authority. Bullying tactics include, but are not limited to, making threats, spreading rumors, social isolation, and attacking someone physically, verbally, or through the use of electronic media.

b. Scope.

(1) What constitutes hazing and bullying? Hazing and bullying can include both physical and nonphysical interactions. Hazing typically involves conduct directed at new members of an organization or individuals who have recently achieved a career milestone. It may result from any form of initiation, “rite of passage,” or congratulatory act that includes unauthorized conduct such as: physically striking another while intending to cause, or causing, the infliction of pain or other physical marks such as bruises, swelling, broken bones, internal injuries; piercing another’s skin in any manner; forcing or requiring the consumption of excessive amounts of food, alcohol, drugs, or other substances; or encouraging another to engage in illegal, harmful, demeaning, or unauthorized dangerous acts. Unlike hazing, bullying often, but not always, takes the form of excessive corrective measures that, like hazing, involve the infliction of physical or psychological pain and go beyond what is required for authorized corrective training.

(2) Hazing and bullying are not limited to superior-subordinate relationships. They may occur between peers or, under certain circumstances, may involve actions directed towards senior personnel by those junior in rank, grade, or position to them. Hazing may occur during graduation or promotion ceremonies or similar military “rites of passage.” However, it may also happen in military settings, such as in small units, to initiate or “welcome” a new member to the unit. Bullying may also occur in all settings but it most often appears as excessive correction of, or punishment for, perceived performance deficiencies. Hazing and bullying are prohibited in all cases, to include off-duty or “unofficial” celebrations or unit functions, on or off post.

(3) What does not constitute hazing or bullying?

(a) Hazing may occur when otherwise authorized or permissible conduct crosses the line into impermissible conduct. Bullying is always committed with the intent to exclude or reject another from inclusion in a group and, while the bullying conduct may appear to be corrective training, it is never authorized or permissible. The imposition of necessary or proper duties and the requirement of their performance does not violate this policy even though the duties may be arduous, hazardous, or both. When authorized by the chain of command and/or operationally required, the following activities do not constitute hazing or bullying: (1) the physical and mental hardships associated with operations or operational training; (2) lawful punishment imposed pursuant to the UCMJ; (3) administrative corrective measures, including verbal reprimands and command-authorized physical exercises; (4) extra military instruction or corrective training that is a valid exercise of military authority needed to correct a Soldier’s deficient performance in accordance with paragraph 4–6; (5) physical training and remedial physical training; and (6) other similar activities that are authorized by the chain of command and conducted in accordance with this or another applicable regulation.

(b) Many time-honored customs of the Army include traditional events that celebrate personal milestones and professional achievements. These events are part of our heritage and include hails and farewells, promotion and graduation ceremonies, and other official command functions. When properly organized and supervised, these events serve to enhance morale, esprit de corps, pride, professionalism, and unit cohesiveness. The chain of command will ensure these traditions and customs are carried out in accordance with Army values and that the dignity and respect of all participants is maintained.

(c) The willingness of any participant is irrelevant; therefore, express or implied consent to prohibited behaviors under this paragraph is not a defense to a violation of this regulation.

c. Command responsibilities.

(1) Enforcement of this policy is the responsibility of commanders and supervisors at all levels.

(2) Publish and post written command policy statements on treatment of persons. Statements will be consistent with the Army policy, include the local command’s commitment to prevention of hazing and bullying, and reaffirm that these behaviors will not be tolerated. The command policy will explain how and where to file complaints and will state that all complainants will be protected from acts or threats of reprisal. Each ACOM, ASCC, DRU, installation, unit, agency, and activity down to company, troop, or battery level will publish a treatment of persons policy. Commanders must consult with their legal advisor prior to publishing.

(3) Conduct training. On at least an annual basis, commanders will conduct hazing and bullying training as part of the EO training requirements related to promoting a healthy unit climate.

(4) Commanders will immediately report allegations of criminal behavior in violation of this paragraph to law enforcement. All other hazing or bullying allegations that are reported to a commander will be investigated as possible violations of Article 92 of the UCMJ in accordance with the informal board procedures set forth in AR 15–6 or as a commander’s inquiry. Individuals may also report incidents of hazing to the appropriate Inspector General’s office and these incidents may be investigated by that office or referred to the command for investigation. Regardless of the type of investigation conducted into the hazing or bullying allegation (law enforcement, IG, or administrative), commanders are responsible for coordinating with their unit Equal Opportunity Advisor (EOA) to ensure that all hazing or bullying allegations are recorded and tracked in the Equal Opportunity Reporting System (EORS). Although administrative investigations into hazing or bullying are not EO investigations, EOAs will ensure that these incidents are recorded in EORS for tracking purposes. If a Soldier possesses a security clearance, commanders will ensure the security manager records the derogatory information as an incident report in the JPAS (or subsequent system) in accordance with AR 380–67.

d. Individual responsibilities.

Individuals are responsible for the following:

(1) Advising the command of any incidents of hazing or bullying.

(2) Conducting themselves in accordance with this paragraph and treating all persons as they should be treated – with dignity and respect.

e. Individual reporting.

Servicemembers should report hazing or bullying to their commander, law enforcement, or the Inspector General.

Appendix B. DoD Instruction 1020.03 Harassment Prevention and Response in the Armed Forces, Paragraph 3.4

3.4. BULLYING. A form of harassment that includes acts of aggression by Service members or DoD civilian employees, with a nexus to military service, with the intent of harming a Service member either physically or psychologically, without a proper military or other governmental purpose. Bullying may involve the singling out of an individual from his or her coworkers, or unit, for ridicule because he or she is considered different or weak. It often involves an imbalance of power between the aggressor and the victim. Bullying can be conducted through the use of electronic devices or communications, and by other means including social media, as well as in person.

a. Bullying is evaluated by a reasonable person standard and includes, but is not limited to the following when performed without a proper military or other governmental purpose:

(1) Physically striking another person in any manner or threatening to do the same;

(2) Intimidating, teasing, or taunting another person;

(3) Oral or written berating of another person with the purpose of belittling or humiliating;

(4) Encouraging another person to engage in illegal, harmful, demeaning or dangerous acts;

(5) Playing abusive or malicious tricks;

(6) Branding, handcuffing, duct taping, tattooing, shaving, greasing, or painting another person;

(7) Subjecting another person to excessive or abusive use of water;

(8) Forcing another person to consume food, alcohol, drugs, or any other substance;

(9) Degrading or damaging another’s property or reputation; and

(10) Soliciting, coercing, or knowingly permitting another person to solicit or coerce acts of bullying.

b. Bullying does not include properly directed command or organizational activities that serve a proper military or other governmental purpose, or the requisite training activities required to prepare for such activities (e.g., command-authorized physical training).

c. Service members may be responsible for an act of bullying even if there was actual or implied consent from the victim and regardless of the grade or rank, status, or Service of the victim.

d. Bullying is prohibited in all circumstances and environments, including off-duty or “unofficial” unit functions and settings.

Appendix C. DoD Instruction 1020.03 Harassment Prevention and Response in the Armed Forces, Paragraph 3.5

3.5. HAZING. A form of harassment that includes conduct through which Service members or DoD employees, without a proper military or other governmental purpose but with a nexus to military Service, physically or psychologically injures or creates a risk of physical or psychological injury to Service members for the purpose of: initiation into, admission into, affiliation with, change in status or position within, or a condition for continued membership in any military or DoD civilian organization. Hazing can be conducted through the use of electronic devices or communications, and by other means including social media, as well as in person.

a. Hazing is evaluated by a reasonable person standard and includes, but is not limited to, the following when performed without a proper military or other governmental purpose:

(1) Any form of initiation or congratulatory act that involves physically striking another person in any manner or threatening to do the same;

(2) Pressing any object into another person’s skin, regardless of whether it pierces the skin, such as “pinning” or “tacking on” of rank insignia, aviator wings, jump wings, diver insignia, badges, medals, or any other object;

(3) Oral or written berating of another person with the purpose of belittling or humiliating;

(4) Encouraging another person to engage in illegal, harmful, demeaning or dangerous acts;

(5) Playing abusive or malicious tricks;

(6) Branding, handcuffing, duct taping, tattooing, shaving, greasing, or painting another person;

(7) Subjecting another person to excessive or abusive use of water:

(8) Forcing another person to consume food, alcohol, drugs, or any other substance; and

(9) Soliciting, coercing, or knowingly permitting another person to solicit or coerce acts of hazing.

b. Hazing does not include properly directed command or organizational activities that serve a proper military or other governmental purpose, or the requisite training activities required to prepare for such activities (e.g., administrative corrective measures, extra military instruction, or command-authorized physical training).

c. Service members may be responsible for an act of hazing even if there was actual or implied consent from the victim and regardless of the grade or rank, status, or Service of the victim.

d. Hazing is prohibited in all circumstances and environments including off-duty or “unofficial” unit functions and settings.

Appendix D. Army Regulation 25-13, Paragraph 3-2

3–2. Unauthorized and prohibited uses of telecommunications and computing systems.

a. Unauthorized use or abuse of DoD and Army telecommunications, UC, and computing systems (including telephone, email systems, DoD mobile devices, web services, or other systems) may subject users to administrative, criminal, or other adverse action.

b. Use of DoD-owned IT. Introducing or using software, firmware, or hardware on DoD owned/issued IT that has not been approved by the Army CIO/G–6-appointed authorizing official is prohibited.

c. Prohibitions on the use of Army communications systems include—

(1) Use of communications systems, including web services, which adversely reflect on DoD or the Army. Examples include uses involving sexually explicit email or access to sexually explicit websites, pornographic images, or computer generated or otherwise pornographic images; chain email messages; unofficial advertising, soliciting, or selling via email; and other uses that are incompatible with public service.

(2) Use of inappropriate signature blocks when sending electronic messages (emails). Army policies for records management apply to emails. Emails generated by Army personnel in their official capacity from Army communication devices (including but not limited to computers and hand held devices) will not contain slogans, quotes, or other personalized information as part of the individual sender’s signature block. Signature blocks within emails will contain only the necessary business information, such as: the name of the organization (office, activity, or unit represented); official mailing address or unit information; name of individual; telephone numbers (Defense Switched Network, commercial telephone, cell phone number, or facsimile numbers); office email addresses or government websites (unit web or social media page); government disclaimer (Privacy Act Statement, Attorney Client Notice); unit historical motto (http://www.tioh.hqda.pentagon.mil); or any other information approved by HQDA. Requests for exceptions will be submitted to the first O6 or equivalent in the chain of command (with possible delegation to the next O5 in the chain of command, or his/her equivalent).

(3) Use of communications systems for unlawful activities, commercial purposes, or in support of for-profit activities, personal financial gain, personal use inconsistent with DoD policy, personal use that promotes a particular religion or faith, or uses that violate other Army policies or laws. This may include, but is not limited to, violation of intellectual property and copyright laws, gambling, support of terrorist or subversive activities, and sexual or other forms of harassment.

(4) Political transmissions, to include transmissions that advocate the election of particular candidates for public office.

(5) Actions that result in the theft of resources, personal and/or private information, or the abuse of computing facilities. Such prohibitions apply to email and content storage services and include, but are not limited to, the unauthorized entry, use, transfer, and/or tampering with the accounts and files of others; interference with the work of others; and interference with other computing facilities.

(6) Use of communications systems that could reasonably be expected to cause, directly or indirectly, the congestion, delay, or disruption of service to any computing facilities; a denial of service; or cause the unwarranted or unsolicited interference with others’ use of communications. These types of interferences are described in AR 25–1.

(7) Use of communications systems to open, send, or forward items known or suspected of being malicious (for example, spam, phishing, viruses, and Trojan horses).

Appendix E. Federal Acquisition Regulation (FAR) 52.203-13, Contractor Code of Business Ethics and Conduct

As prescribed in 3.1004(a), insert the following clause:

Contractor Code of Business Ethics and Conduct

(a) Definition. As used in this clause--

“Agent” means any individual, including a director, an officer, an employee, or an independent Contractor, authorized to act on behalf of the organization.

“Full cooperation”—

(1) Means disclosure to the Government of the information sufficient for law enforcement to identify the nature and extent of the offense and the individuals responsible for the conduct. It includes providing timely and complete response to Government auditors’ and investigators’ request for documents and access to employees with information;

(2) Does not foreclose any Contractor rights arising in law, the FAR, or the terms of the contract. It does not require—

(i) A Contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; or

(ii) Any officer, director, owner, or employee of the Contractor, including a sole proprietor, to waive his or her attorney client privilege or Fifth Amendment rights; and

(3) Does not restrict a Contractor from—

(i) Conducting an internal investigation; or

(ii) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation.

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

“Subcontract” means any contract entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract.

“Subcontractor” means any supplier, distributor, vendor, or firm that furnished supplies or services to or for a prime contractor or another subcontractor.

“United States” means the 50 States, the District of Columbia, and outlying areas.

(b) Code of business ethics and conduct.

(1) Within 30 days after contract award, unless the Contracting Officer establishes a longer time period, the Contractor shall—

(i) Have a written code of business ethics and conduct;

(ii) Make a copy of the code available to each employee engaged in performance of the contract.

(2) The Contractor shall—

(i) Exercise due diligence to prevent and detect criminal conduct; and

(ii) Otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.

(3)

(i) The Contractor shall timely disclose, in writing, to the agency Office of the Inspector General (OIG), with a copy to the Contracting Officer, whenever, in connection with the award, performance, or closeout of this contract or any subcontract thereunder, the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed—

(A) A violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code; or

(B) A violation of the civil False Claims Act (31 U.S.C. 3729-3733).

(ii) The Government, to the extent permitted by law and regulation, will safeguard and treat information obtained pursuant to the Contractor’s disclosure as confidential where the information has been marked “confidential” or “proprietary” by the company. To the extent permitted by the law and regulation, such information will not be released by the Government to the public pursuant to a Freedom of Information Act request, 5 U.S.C. Section 552, without prior notification to the Contractor. The Government may transfer documents provided by the Contractor to any department or agency within the Executive Branch if the information relates to matters within the organization’s jurisdiction.

(iii) If the violation relates to an order against a Governmentwide acquisition contract, a multi-agency contract, a multiple-award schedule contract such as the Federal Supply Schedule, or any other procurement instrument intended for use by multiple agencies, the Contractor shall notify the OIG of the ordering agency and the IG of the agency responsible for the basic contract.

(c) Business ethics awareness and compliance program and internal control system. This paragraph (c) does not apply if the Contractor has represented itself as a small business concern pursuant to the award of this contract or if this contract is for the acquisition of a commercial item as defined at FAR 2.101. The Contractor shall establish the following within 90 days after contract award, unless the Contracting Officer establishes a longer time period:

(1) An ongoing business ethics awareness and compliance program.

(i) This program shall include reasonable steps to communicate periodically and in a practical manner the Contractor’s standards and procedures and other aspects of the Contractor’s business ethics awareness and compliance program and internal control system, by conducting effective training programs and otherwise disseminating information appropriate to an individual’s respective roles and responsibilities.

(ii) The training conducted under this program shall be provided to the Contractor’s principals and employees, and as appropriate, the Contractor’s agents and subcontractors.

(2) An internal control system.

(i) The Contractor’s internal control system shall—

(A) Establish standards and procedures to facilitate timely discovery of improper conduct in connection with Government contracts; and

(B) Ensure corrective measures are promptly instituted and carried out.

(ii) At a minimum, the Contractor’s internal control system shall provide for the following:

(A) Assignment of responsibility at a sufficiently high level and adequate resources to ensure effectiveness of the business ethics awareness and compliance program and internal control system.

(B) Reasonable efforts not to include an individual as a principal, whom due diligence would have exposed as having engaged in conduct that is in conflict with the Contractor’s code of business ethics and conduct.

(C) Periodic reviews of company business practices, procedures, policies, and internal controls for compliance with the Contractor’s code of business ethics and conduct and special requirements of Government contracting, including—

(1) Monitoring and auditing to detect criminal conduct;

(2) Periodic evaluation of the effectiveness of the business ethics awareness and compliance program and internal control system, especially if criminal conduct has been detected; and

(3) Periodic assessment of the risk of criminal conduct, with appropriate steps to design, implement, or modify the business ethics awareness and compliance program and the internal control system as necessary to reduce the risk of criminal conduct identified through this process.

(D) An internal reporting mechanism, such as a hotline, which allows for anonymity or confidentiality, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports.

(E) Disciplinary action for improper conduct or for failing to take reasonable steps to prevent or detect improper conduct.

(F) Timely disclosure, in writing, to the agency OIG, with a copy to the Contracting Officer, whenever, in connection with the award, performance, or closeout of any Government contract performed by the Contractor or a subcontractor thereunder, the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed a violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C. 3729-3733).

(1) If a violation relates to more than one Government contract, the Contractor may make the disclosure to the agency OIG and Contracting Officer responsible for the largest dollar value contract impacted by the violation.

(2) If the violation relates to an order against a Governmentwide acquisition contract, a multi-agency contract, a multiple-award schedule contract such as the Federal Supply Schedule, or any other procurement instrument intended for use by multiple agencies, the contractor shall notify the OIG of the ordering agency and the IG of the agency responsible for the basic contract, and the respective agencies’ contracting officers.

(3) The disclosure requirement for an individual contract continues until at least 3 years after final payment on the contract.

(4) The Government will safeguard such disclosures in accordance with paragraph (b)(3)(ii) of this clause.

(G) Full cooperation with any Government agencies responsible for audits, investigations, or corrective actions.

(d) Subcontracts.

(1) The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts that have a value in excess of $5.5 million and a performance period of more than 120 days.

(2) In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.


Notes

1. The statement was made in 2012 by way of a letter signed by then Secretary of the Army John M. McHugh, Chief of Staff of the Army, General Ray Odierno, and Sergeant Major of the Army, Raymond F. Chandler III. It has been cited in multiple publications since that time as a statement which reflects the Army’s zero tolerance for bullying and hazing. See David Vergun, Zero Tolerance in Army for Bullying, Hazing (Aug 13, 2012), https://www.army.mil/article/85308/zero_tolerance_in_army_for_bullying_hazing.

2. Arnold Bandura, Social Cognitive Theory of Moral Thought and Action in William M. Kurtines and Jacob L. Gewirtz (eds), Handbook of Moral Behavior and Development 86 (Vol 1, 1991).

3. All Army Activities Message, 058/2018, 251301Z Jul 18, U.S. Dep’t of Army, subject: ALARACT Professionalization of Online Conduct [hereinafter ALARACT 058/2018].

4. Other measures noted in ALARACT 058/2018 include updating all Army systems which currently track misconduct related to equal opportunity, equal employment opportunity, SHARP, Inspector General investigations, UCMJ investigations, and Law enforcement investigations to reflect any amendments and ensuring that changes fulfil local labor relations obligations.

5. The scandal involved non-consensual distribution of private (intimate/sexually explicit) images of female service members and military spouses. This form of harmful online conduct is referred to as “revenge porn” (non-consensual distribution of a private still or moving image of someone in an act of revenge—e.g., posting a naked photo of a former partner online following a breakdown of the relationship without the person’s consent).

6. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 4-19 (6 Nov. 2014) [hereinafter AR 600-20]. Paragraph 4-19 is included in this article as Appendix A.

7. AR 600-20, supra note 6, para. 4-19

8. Dorothy L. Espelage & Susan M. Swearer Napolitano, Research on School Bullying and Victimization: What Have We Learned and Where Do We Go From Here? 32, no. 3 Sch. Psychol. Rev. 365 (2003); Peter K. Smith et al,. Definitions of Bullying: A Comparison of Terms Used, and Age and Gender Differences, in a Fourteen-Country International Comparison, 73 Child Dev. 1119 (2002).

9. Dan Olweus, Familial and Temperamental Determinants of Aggressive Behavior in Adolescent Boys: A Causal Analysis, 16 Developmental Psychology 644 (1980).

10. AR 600-20, supra note 6, para. 4-19.

11. U.S. Dep’t of Def., Instr. 1020.03, Harassment Prevention and Response in the Armed Forces para. 3.4 (8 Feb. 2018) [hereinafter DoDI 1020.03]. Paragraph 3.4 is included in this article as Appendix B.

12. DoDI 1020.03, supra note 11, para. 3.4 a (1-10).

13. DoDI 1020.03, supra note 11, para. 3.5. Paragraph 3.5 is included in this article as Appendix C.

14. Fla. Stat. § 1006.63 (2010).

15. DoDI 1020.03, supra note 11, para. 3.5a (1-9).

16. Several examples listed were included in the existing anti-hazing provision in AR 600-20, paragraph 4-19.

17. 47 U.S.C. § 223 (a)(1)(C).

18. 18 U.S.C. § 875.

19. 18 U.S.C. § 2261A.

20. 47 U.S.C. § 223(a)(1)(A).

21. 18 U.S.C. § 1030.

22. U.S. Dep’t of Army, Reg. 25-13, Army Telecommunications and Unified Capabilities para. 3-2 (11 May 2017) [hereinafter AR 25-13]. AR 25-13, paragraph 3-2, Unauthorized and prohibited uses of telecommunications and computing systems, is included in this article as Appendix D.

23. 18 U.S.C. § 1030.

24. 47 U.S.C. § 223 (a)(1)(C).

25. 18 U.S.C. § 875.

26. 18 U.S.C. § 2261A.

27. 47 U.S.C. § 223(a)(1)(A).

28. 18 U.S.C. § § 2251, 2252, 2252A.

29. Federal Acquisition Regulation (FAR) 52.203-13, Contractor Code of Business Ethics and Conduct, is included in this article as Appendix E.

30. 47 U.S.C. § 223 (a)(1)(c).

31. 18 U.S.C. § 875.

32. 47 U.S.C. § 223 (a)(1)(A).

33. FAR 52.203-13, supra note 29.

34. United States ex rel. Ortolano v. Amin Radiology, 2015 U.S. Dist. LEXIS 9724; Mikes v. Straus, 274 F.3d 687, 700 (2d Cir. 2001).

35. This is a sensible exclusion given the additional costs associated with the implementation and enforcement of an internal control system (which goes beyond the requirements outlined in (b) (1)-(3)). To be regarded a “small business,” the business must meet the Small Business Administration’s applicable size standards. The U.S. government has a goal to award twenty-three percent of U.S. government prime contracts to small business concerns.

36. “Due diligence” has been judicially construed as “doing everything reasonable, not everything possible.” See, e.g., People v. Sullivan, 97 Mich. App. 488, 296 N.W.2d 81, 1980 Mich. App. LEXIS 2679; Smigelski v. Dubois, 2013 Conn. Super. LEXIS 1100, 2013 WL 2922984.

37. This would involve a discretionary judgement by the contracting officer. An instance where it may not be practicable to include the clause might involve a contract award to a sole proprietor.

38. “Army members” include all members of the Army team including members of the regular Army, the Army National Guard/Army National Guard of the United States, U.S. Army Reserve, cadets of the U.S. Military Academy, contracted cadets of the Reserve Officer Training Corps, Army Civilians, certain contractors, and contracted recruits managed by U.S. Army recruiting command.

39. Army Social Media, accessible at https://www.army.mil/socialmedia/.

40. Any examples referenced will need to reflect definitions and examples provided in AR 600-20.

41. Note, the examples refer to “Army members” rather than “Soldiers” reflects the application of Army social media policy to all Army members, not just active duty Soldiers.