Death By Email Blog

Emails Show "A Stain on (Missouri) State Government That Cannot Be Ignored"

In a major success of state Sunshine Laws, the media was able to press for the release of emails that document just how government worked.  Unfortunately, people in Missouri should be distressed on what they saw.

The St. Louis Post-Dispatch finally got a chance to review emails that Missouri Governor Matt Blunt's office claimed were deleted.  The newspaper concluded that the governor's office has issued misleading statements on a host of issues during the past year. The report said Blunt's staffers falsely claimed the administration did not regularly conduct state business out of public view on campaign emaill accounts.

Even worse: "As chief of staff to Missouri Gov. Matt Blunt, Ed Martin turned the office into a political operation, using his position to galvanize special-interest groups on issues such as abortion and the judiciary," the Post-Dispatch said.

"Just-released emails from Missouri Gov. Matt Blunt and his underlings show they caused a stain on state government that cannot be ignored.  Fortunately, Missourians now know how lucky we are that Blunt and his team will vacate the State Capitol in less than two months," editorialized the Kansas City Star.

We should all be thrilledthat the open government process worked -- although it took more than a year.  The emails were delivered to The Associated Press, St. Louis Post-Dispatch and The Kansas City Starin a stack of 22 boxes Thursday evening. A team of 12 reporters spent two days examining each of an estimated 60,000 pages of documents, generally covering a span of time between July and October of 2007.
The records include e-mails sent and received by six people -- Blunt; former chief of staff Ed Martin; communications director Rich Chrismer; former general counsel Henry Herschel; former legal counsel Scott Eckersley; and Rich AuBuchon, formerly the legal counsel and acting director of the Office of Administration.

On Friday night, the governor's office supplied the three media organizations with a list of about 1,400 emails that the office said were not subject to full disclosure. The office cited exemptions under the Sunshine law. As part of the agreement, the three organizations can now contest those exemptions to a special master.

Judge Says Palin's Emails Are Public Record

Alaska State Superior Court Judge Craig Stowers today ordered the administration of Gov. Sarah Palin to preserve emails she sent from her private Yahoo! email account dating back to December 2006. (The Public Record)  This key Freedom of Information Act ruling, which could have national implications, emphasized two major points:

• Emails sent or received through  personal email accounts are public records if they concern official state business.  (Anchorage Daily News) 
• It specifically ordered Alaska Attorney General Talis Colberg to immediately contact Yahoo!, an out of state company, and to begin the process of preserving emails dating back to 2006 and retrieve all emails and attachments that may have been destroyed after Palin’s account was deactivated following the hack.

Stowers' ruling did not ban the use of personal email accounts.  Instead, these accounts may be used provided that the state can ensure the emails are properly saved and made accessible.

While dozens of states are having Freedom of Information Act and open records battles regarding email, this battle is likely to have national influence because of the national publicity given to Governor Palin during her run for vice president.  It may set the tone for rulings in other states. 

Sweden May Approve Far Reaching Wiretap Bill

Many of us think of Sweden as the home of super liberal thought and government policies.  So, what could happen that would make Google's global privacy counsel say suggest that Sweden was in danger of embarking on a path usually reserved for dictatorial regimes?

"The proposal stems from a tradition begun by Saudi Arabia and China and simply has no place in a Western democracy."

The Swedish parliament seems close to passing a far reaching wiretap bill that will enable the government to read any email that goes in or out of Sweden.  This week, the Swedish Parliamentary Committee on Defense approved the En anpassad försvarsunderrättelseverksamhet bill, which loosely translates to "a better adapted military intelligence gathering."  A debate and vote by the entire Parliament is expected June 17th. 

The bill gives Sweden's National Defence Radio Establishment (FRA) direct access to all electronic communications that passes through Sweden's border.  Note that this includes any email, fax or VOIP call that happens to go through a server in Sweden -- even if the email was not sent or received by somebody in Sweden.

"Once intercepted, the data will be searched for certain keywords, and those that contain the words will be pulled aside for additional scrutiny. A broad array of organizations will have use of the system, including the Department of Transportation, the Department of Agriculture, the police, secret service and customs, and in some cases major businesses. The bill allows Swedes to be singled out, as well," states the Register.

Search engine giant Google slammed Sweden's proposed wiretapping legislation as illiberal and incompatible with Western democracy, according to The Local, Sweden's News in English. 

"We have contacted Swedish authorities to give our view of the proposal and we have made it clear that we will never place any servers inside Sweden's borders if the proposal goes through," Google's global privacy counsel, Peter Fleische, said on a trip to Sweden last week.

Even though its still only a bill, it has already had repercussions. Last year TeliaSonera in Finland moved e-mail servers and 500,000 accounts from Sweden to Finland. The move was finalized in April this year, reported PC World.

Cop Out May Wipe Out Key Precedent

A few days ago, this blog reported about a landmark case in which New Jersey State Superior Court Judge Innes determined that emails sent and received on a private email service by Governor Jon S. Corzine are indeed public records that are subject to the state's Freedom of Information Act.  At the time, I stated that the ruling was likely to have wide impact nationally and would further open government (Emails In Private Accounts May Be Public).

In an cop-out of major proportions yesterday, Tom Wilson, the New Jersey state Republican Party chairman, said  he'll dismiss his lawsuit seeking the emails if Corzine releases them and pays Wilson's $40,000 in legal costs.  The impact is that dropping the case would avoid having the judge's Friday decision become legal precedent in disputes over executive privilege (AP) and the freedom of information.

A legal precedent, however, is exactly what we need.  Otherwise, we will be going through these same issues again and again to ensure open government and real accountability. 

Corzine may be ashamed of what he did.  But, Tom Wilson has now proved that his quest was one for political gain and not for open government.  I am not sure who to be more upset with.

Employers May Limit Union Use of Email Systems

The National Labor Relations Board (NLRB) ruled that employers do have "basic property right" to restrict the use of its email system by a union and that a union should not be able to use an employer's equipment to organize or communicate with employees. (Law.com)  This ruling settles a long running dispute and affirms the position in the U.S. that it is the employer, not the employee, who controls the content of their email system.  But, it may also suggest that employers review their email policies to make sure they are handled consistently.

This dispute put a union's basic right to organize workers against property rights.  The unions argued that the use of email is widespread and that in many cases has augmented verbal communications.  The issue of verbal communications is important.  Over the years, NLRB gave greater protection to verbal communications than to written communications, such as a brochure or a leaflet.

However, the NLRB has also recognized that the National Labor Relations Act does have some limitations when it comes to union activities during working hours in the workplace.  For example, it has been held that a union should not be able to use an employer's equipment to organize.

In this particular case, the employer, Guard Publishing had a general policy that prohibited any "nonjob-related solicitations" on company email.   This was held to be perfectly legal.  The union also argued that since the employer had allowed some personal or nonbusiness email solicitations, it had to allow union emails, or else it was enforcing its policy in a "discriminatory" manner. The board rejected this theory.  This is how Law.com explains it:

The board recognized that an employer who allows limited personal email solicitations, but still prohibits union solicitations, has not engaged in discriminatory enforcement. The board limited the application of the discriminatory enforcement rule to the employer's treatment of email communications of a similar nature. For example, it stated that an employer may lawfully allow employees to send personal emails, listing personal items "for sale," or use email to solicit support for charitable organizations like the Red Cross, while still prohibiting union solicitations. The board reasoned that these communications were not similar, and therefore did not merit similar treatment.

On the other hand, the board cautioned that if union solicitations are prohibited, an employer cannot allow employees to use email to solicit for profit-making ventures, to organize meetings for "clubs" or private organizations, or to promote competing unions. To allow these types of email solicitations while prohibiting "union" emails would be discriminatory enforcement.

There are specific rules regarding union solicitations that cannot be generalized to normal email use.  But, it would not be a stretch to imagine legal action where somebody complains that a general prohibition on the use of non-business email would be challenged if it is not uniformly enforced.

This suggests that employers should review their email policies to be more specific about what is allowed and what is not allowed.  For example, banning "non-business" emails may be too broad in this day and age.  Specifically allowing a reasonable number of personal messages, as explained above, may be prudent.

Ruling Confirms First Felony Spam Conviction

In a narrow 4-3 ruling today, the Virgina Supreme Court upheld the conviction of one of the world's most notorious spammer and specifically said that spam was not protected by the First Amendment guarantees of free speech.

Jeremy Jaynes was once listed by Spamhaus as the "8th most prolific spammer in the world."  At the time of his arrest in December 2003, "said that in a period of just one month, Jaynes and a partner sent over 100,000 e-mails to AOL users that were in turn reported as spam, with untold more going to other ISPs." (Daily Tech)  He was convicted and sentenced to nine years in prison.

An interesting twist to the conviction was that Jaynes is a North Carolina resident and did not operate out of Virgina.  However, the Virginia law covers mail passing through the state, including mail passing through AOL's servers.  Jayne's claim that the law violated the interstate commerce provisions of the U.S. Constitution were also rejected by the Virginia Supreme Court.

Generally, it is good to cheer the successful conviction of such a mass spammer.

"This is a historic victory in the fight against online crime," state Attorney General Bob McDonnell said in a written statement. "Spam not only clogs e-mail inboxes and destroys productivity; it also defrauds citizens and threatens the online revolution that is so critical to Virginia's economic prosperity."

However, should Virginia have the right to pass regulations on how the Internet may be used anywhere in the country simply because AOL's servers are in that state?  What other states can now exercise new rights because email is stored or forwarded for a nanosecond within its boundaries?

18-1/2 Minute Gap Versus 12 Day Gap

The Nixon White House was plagued with the "18-1/2 Minute Gap" during recordings made by President Nixon as he chatted with his chief of staff, H.R. Haldeman.  News of the erasure, late the following year, eroded Nixon's credibility at a time when his presidency was unraveling over the break-in at the Democratic National Committee headquarters in the Watergate Hotel.

What about 12 Day Gap in Bush's White House emails?  Will it become as well known?

Last week Rep. Henry Waxman of the House Committee on Oversight and Government Reform revealed the extent of the archives allegedly missing from several executive offices: a total of 473 days from 2003 to 2005.  Waxman said he made the allegations public after a White House official insisted that "we have actually no reason to believe that any e-mails are missing."

According to one official analysis reported in Time Magazine, there were 12 days without archived e-mail from the President's inner offices during a troubled period, December 2003 to February 2004, when it became clear that the central premise of the war — the presence of weapons of mass destruction (WMD) in Iraq — had collapsed.

There are also 16 days of missing emails reported from the offices of Vice President Dick Cheney.   
   

FCC Told -- Don't Delete Any Email

Email has become the target in another investigation on government transparency.  This time, it is Congress issuing an extremely broad email preservation order to the Federal Communications Commission, an independent government agency directly responsible to Congress.

The Democratic and Republican leaders of the House Energy and Commerce Committee (Chairman John D. Dingell , D-Mich., ranking Republican Joe L. Barton of Texas, and other members of the panel.) sent a letter to Federal Communications Commission chairman Kevin Martin ordering him and other FCC employees "to immediately preserve all electronic records, including work email and personal email communications relating to official work of the commission, and calendars and schedules of all employees (and paper copies and versions of those records)."  (Hollywood Reporter)

The purpose of the investigation is to determine whether FCC procedures are fair, open and transparent.

The agency has drawn scrutiny over its Dec. 18 decisions to relax media-ownership rules and tighten controls over the cable industry in the face of opposition from Republicans and Democrats in Congress. In November, Chairman Kevin Martin, a Republican, was accused by Democrats on the panel of manipulating data meant to justify greater cable oversight. (Bloomberg News)

Federal Rules of Civil Procedure Update -- 2007!

You probably know that the Federal Rules of Civil Procedure were amended effective December 1, 2006.  Did you also know that the FRCP was updated this month?   Frankly, the changes are more stylistic than substantive.  But you can impress your friends at meetings by having a newer copy than they do!  You can download a copy of the new rules.

City Attorney Refuses To Release "Inappropriate" Emails. Cites Privacy.

One clerical employee has been fired, another forced to resign and four others disciplined after Redding, California investigated "inappropriate conduct in the workplace relating to personal relationships, or inappropriate use of city email containing off-color jokes or sexual humor, or excessive use of city email for private and personal matters unrelated to city business," City Attorney Rick Duvernay said in an article printed by the Redding (CA) Record-Spotlight. 

Even though Duvernay specifically stated that email was involved in the city's action involving public officials and even though California has one of the clearest Freedom of Information Act rules, Redding is refusing to release the actual emails to the local newspaper for public scrutiny. 

The Redding Record Searchlight made the request for emails, cell phone bills, expense statements, and reports stemming from the investigation under the California Public Records Act.  Yet, the newspaper reports that the city refused:

Duvernay rejected that request in a letter received Thursday, saying employees and former employees enjoy strong privacy rights under the California Constitution.

Even though the emails were sent via city computers and on city time, they were private and confidential and, therefore, not part of the public record, Duvernay said.

"In the opinion of the city, there is no doubt that constitutional privacy issues are implicated, and damage to reputations and exposure to liability is real and present if the city were to release the information requested," Duvernay wrote in his response to the newspaper's request.

"And while the city respects the role of the paper and the interest of the public in being informed about the conduct of the city's business," Duvernay wrote, "we see no value in exposing private emails or investigatory reports or investigatory material concerning persons who have resigned or who have been terminated."

While there is little doubt that the content is of a personal nature, it was also clearly stated in the article that the emails involved public employees using public computers on public time.  Does that make it a public record?

Jim Ewert, legal counsel for the California Newspaper Publishers Association, was quoted by the newspaper as saying that the city is "making a fundamental mistake in assuming that this information (in the investigation) is confidential or even private."  The public's right to know outweighs a public employee's privacy rights when there are charges of substantial misconduct against the worker that turn out to be true, Ewert said.

(Thanks to Kimo Crossman.)