February 16, 2010 By Andy Opsahl
Social networking technologies are creating potential challenges for government transparency. As more agency employees use Twitter, Facebook and similar external sites, some state and local IT officials are asking if those communications should be archived for public viewing. The problem is that agencies don't know how to archive communications made on third-party social networks. For now, CIOs are delaying this puzzler because the Freedom of Information Act (FOIA) has no mandates related to them. But Melinda Catapano, city records manager for Grand Junction, Colo., who also is a lawyer, predicts that courts will eventually force agencies to provide this data.
Examining the potential risks of this issue could help CIOs discern the appropriate priority level for solving it.
Catapano follows legal trends closely and thinks a mandate from the courts could be imminent. "There are so many ways a court could say this is connected to official agency work, ergo you better be able to produce that record," she said.
As citizens become accustomed to accessing more types of communication archives, social network archives will be a logical expectation, said Elayne Starkey, chief security officer of Delaware and FOIA coordinator for the state's Department of Technology and Information.
Catapano pointed to a judgment from the U.S. Court of Appeals for the Ninth Circuit that the U.S. Supreme Court recently agreed to review. In City of Ontario v. Quon, the court held that the Ontario, Calif., Police Department violated an officer's privacy rights by examining an archive of text messages on his city-issued cell phone. If the U.S. Supreme Court reverses the circuit court's decision and says producing an archive of employee text messages is legitimate, that could have implications on other electronic communications, in Catapano's view.
"To the courts, it may well be a series of short leaps from text messaging via pagers to electronic communications in general to electronic communications via external sources," Catapano said.
Twitter and Facebook could easily be among those "external sources," according to Catapano.
One difference is that state and local governments currently have no mechanism for archiving external social networking posts. By contrast, a mechanism does exist for retrieving text message archives if that becomes required.
Catapano admitted that she, like many other CIOs, didn't have a clue as to how to archive external social networking posts.
"It would probably be a good master's thesis because everybody needs those answers and everybody seems to be avoiding the problem," Catapano remarked.
Michele Hovet, IT director of Arvada, Colo., agreed that the challenge of archiving social networking posts was on the horizon. "Right now, we're drawing a line by policy. If it's hosted on an external entity that we don't have control over, we will not include it in an open records request. We will not have to archive it," Hovet said. "In the future will that change as these tools are used more and more? I think it will."
Since technology already exists for archiving e-mails, Peter Larson, senior manager of IT operations for Douglas County, Colo., suggested that e-mail might be the mechanism IT departments use for storing social network postings. For example, he said an agency could easily attach a program to its e-mail system letting employees post to social networking sites through their government-issued e-mail accounts. Larson theorized that the user experience wouldn't be all that awkward. After all, agency workers already have their e-mail accounts handy anyway. Why couldn't they track communications on Twitter, and then quickly click their Outlook tabs and send necessary tweets via e-mail?
Services performing such an e-mail-to-social networking site function exist on the Web for free, but Larson said an agency would need to build its own to ensure reliability.
"If you were going to be on the hook for producing that archive, you would have to implement some sort of system you could have confidence in," Larson said.
It's also conceivable that social networks could e-mail copies of postings to users. For example, e.Republic, Government Technology's publisher, runs message boards for a local government collaboration program called Digital Communities, which send precisely that type of e-mail to members.
But only time will show how local governments tackle this question as lawyers enforce it as a priority.