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Thursday, February 02, 2017
Courts - "Cal's top court to decide whether emails and texts sent on personal devices are public record" and much more!
Maura Dolan has the story today in the LA Times. It begins:
Community activist Ted Smith suspected backroom dealing at San Jose City Hall.There is much more in the long story. Here is the webcast of the oral argument in the appeal.
San Jose’s former mayor was asking the City Council for government money to help develop a project downtown. Smith filed a public records request for all communications related to the development from elected officials and their staff.
The city responded, providing some records but maintaining that emails, texts and other communications sent by government employees on their private devices were not covered by the California Public Records Act.
Nearly eight years later, the downtown project is complete, helped in part by city funds approved by elected San Jose officials. Smith never received the communications he sought.
But his request is likely to produce new rules to deter government officials from using private phones and computers to keep their communications secret.
During a hearing last month, the California Supreme Court appeared ready to rule that government business conducted on private telephones and computers must be made public.
The quandary expressed by justices was how to fashion a rule to protect the privacy of government employees and still ensure that public business was open to inspection. * * *
In examining Smith’s case, the justices of the state’s top court grappled with several questions: How can government ensure employees retain business-related emails and texts on their private devices? What happens if the communications have been deleted?
Will a new rule make it impossible for employees to discuss their work online for fear it will become a public record? Would a message to a friend or family member about a boss, a work project or colleagues have to be disclosed because the topic involved public business? * * *
Karl Olson, representing the news media, including The Times, argued that many public officials are deliberately using personal computers and telephones to conceal their communications. The practice is widespread, Olson wrote.
The examples Olson cited included Hillary Clinton’s use of a private account while secretary of state, the disclosure of emails that showed aides to New Jersey Gov. Chris Christie created a mammoth traffic jam to punish a Christie foe, and a host of other cases involving public officials using private email addresses in Los Angeles, San Diego, San Francisco and Sacramento.
Without conceding that public officials are using private accounts to evade scrutiny, San Jose’s Frimann said making those communications public wouldn’t necessarily provide the public with more information.
“If private accounts become public records, people will go to phones or meetings” to protect confidentiality, the assistant city attorney said.
Making this story particularly relevant are several other stories the ILB has seen this morning:
- "Federal workers turn to encryption to thwart Trump: Agency employees are turning to Signal and other incognito forms of communication to express their dissent." Politico:
Federal employees worried that President Donald Trump will gut their agencies are creating new email addresses, signing up for encrypted messaging apps and looking for other, protected ways to push back against the new administration’s agenda.
Whether inside the Environmental Protection Agency, within the Foreign Service, on the edges of the Labor Department or beyond, employees are using new technology as well as more old-fashioned approaches — such as private face-to-face meetings — to organize letters, talk strategy, or contact media outlets and other groups to express their dissent.
The goal is to get their message across while not violating any rules covering workplace communications, which can be monitored by the government and could potentially get them fired.
At the EPA, a small group of career employees — numbering less than a dozen so far — are using an encrypted messaging app to discuss what to do if Trump’s political appointees undermine their agency’s mission to protect public health and the environment, flout the law, or delete valuable scientific data that the agency has been collecting for years, sources told POLITICO.
Fearing for their jobs, the employees began communicating incognito using the app Signal shortly after Trump’s inauguration. Signal, like WhatsApp and other mobile phone software, encrypts all communications, making it more difficult for hackers to gain access to them.
- "Trump aides' use of encrypted messaging may violate records law: Using disappearing messages in government could be a "recipe for corruption," says one expert." ZDNet:
Senior Trump administration aides communicating over encrypted messaging apps may be violating federal record-keeping laws.
The Wall Street Journal reported that political aides close to the president are using Signal, an end-to-end encrypted messaging app. And it's not just in the White House. Aides close to the New York governor and the mayor and Obama administration staff also use the encrypted messaging app.
It's no secret that many in politics are taking security more seriously following the hacks that hit the Democratic National Committee, which led to the leaking of thousands of emails to WikiLeaks.
But by keeping those messages and communications private, top administration officials may be falling foul of the Presidential Records Act, a law that requires staff to keep records of those conversations.
"If new agency appointees are using Signal or other disappearing message apps routinely for work, even if it's not classified, that's a serious lapse in records retention policy," said Michael Morisy, founder of non-profit investigative news site MuckRock.
Posted by Marcia Oddi on February 2, 2017 01:13 PM
Posted to Courts in general