Althouse: Government computers, government employees, private email, and state open records laws.

July 16, 2010

Government computers, government employees, private email, and state open records laws.

The Wisconsin Supreme Court rules in favor of individual privacy.

17 comments:

Richard Dolan said...: The import of the ruling (based only on the article) is that these emails are exempt from FOIA-type requests for public disclosure. At bottom, that's just a ruling about what the WI legislature intended to be covered by its FOIA law -- state records only, which does not include personal emails even if sent over state-owned facilities.

It's not a holding that the emails are private for purposes of, say, the Fourth Amendment, or even that the employees had a reasonable expectation of privacy.; 7/16/10, 6:03 PM
mesquito said...: Unless, of course, you ask a Democratic candidate for President a difficult questions while he visits your neighborhood. Then it's digital vivisection time.; 7/16/10, 6:29 PM
David said...: No, they ruled in favor of less accountability for government employees.; 7/16/10, 6:38 PM
Rose said...: Shouldn't email automatically be covered by the same laws that protect snail mail?; 7/16/10, 7:00 PM
Bruce Hayden said...: Shouldn't email automatically be covered by the same laws that protect snail mail?

Maybe should be, but they aren't. The postal regulations go back over 200 years to the founding of the country, and even though the USPS is quasi-independent, is still treated as a special case under federal law.

But if you were to extend the analogy to email, it still probably wouldn't help here. The emails were sent to and from a work account, and so would be the logical equivalent of USPS mail being sent to and from a business - the business owner would have the expectation of privacy, not the employee receiving the mail at work. And the employer could waive that (and would likely be expected to if a government agency).; 7/16/10, 7:21 PM
Bruce Hayden said...: What is interesting here is that this wall between personal and private appears to be quite different when it comes to politicians. I seem to remember some politicians (Republican, and maybe Sarah Palin) who got in trouble for sending private emails on a government account, and visa versa. The problem was that it wasn't clear what was work and what wasn't. In particular, soliciting for money is private (unless you are crazed sex poodle AlGore).

My view, being a small government type, is that if you use a government email account, your email should be subject to FOIA. And, ditto for government paid-for phone bills. If you want to have private communications, don't expect us, the taxpayers, to pay for it.; 7/16/10, 7:28 PM
David said...: Of course the legislature could make the emails subject to FOIA.

Who wants to bet they will not.

(Same legislature that passed recent legislation permitting politicians accused of fraud to be tried in their home counties, rather than where the crime occurred.); 7/16/10, 7:47 PM
Alex said...: This is nonsense. If I use my work email, I have no expectation of privacy on that. Thus I use web-based email for personal stuff while at work.; 7/16/10, 8:01 PM
Big Mike said...: Richard, I'm glad for the clarification in your second paragraph, because everything I know about computers and the law holds that there is no reasonable expectation of privacy when using a company computer. That should hold double for government-issued computers connected to networks established and maintained using government money.

In answer to Rose, Email is different from a letter sent through the USPS because copies of the message must be saved in persistent storage during the transmission. A letter sealed inside an envelope does not have a copy automatically created and saved the way that Email does.; 7/16/10, 9:05 PM
Anonymous said...: Shouldn't email automatically be covered by the same laws that protect snail mail?

Unless you're using encryption, your email is the equivalent of a postcard, not a letter in an envelope. Every stop along the way in its transmission, whomever owns the computer is perfectly capable of reading it.

None of the people who own the computers used in the transmission of email have agreed with you to refrain from reading the data you're transmitting over their computers. This is not stuff being handled by the post office from pickup to delivery, this is stuff being delivered by a daisy chain of private parties. Except for your own ISP, you don't even have a relationship with the people your email is being transmitted by.

And note that your email is not guaranteed to be routed through any specific set of computers to your recipient; it could very well cross borders into other countries, so a law would be ineffective.; 7/16/10, 10:55 PM
MadisonMan said...: I agree with Alex. I do not expect my UW mail to be private, and only a fool would.

There are plenty of free email accounts out there (I even have a netcape.net (!!) account that is ridiculously hard to access now that aol subsumed it). Why should someone's job pay for email overhead that is 'personal'?

The majority who wrote this much send very salacious emails from their wi.gov accounts and they're trying to keep them private. That's my opinion (laugh). Seriously, I think this shows a lack of internet knowledge on the part of the Justices.; 7/16/10, 11:20 PM
Greg Hlatky said...: This is nonsense. If I use my work email, I have no expectation of privacy on that.

Yes, but you if you work in private industry you have a responsibility to the company and its shareholders not to abuse your work e-mail.

This ruling, on the other hand, concerned government workers, who have no such responsibility, least of all to the taxpayers, their servants.; 7/16/10, 11:21 PM
reader_iam said...: My bet is that the postcard analogy is most apt.

---

I can remember--and, really, I'm not all THAT old, lol--when the niceties of "Personal," "Confidential," "Personal and Confidential" and either/both "For Your Eyes Only" and "For Eyes Only" were a matter to be taken seriously. At least in financial services firms (in the one for which I worked, anyway, in the smack middle of the '80s), and most certainly if you were trusted staff (which I most certainly was, thank you very much).

No, no!--Please don't get off of my lawn, I beg of you.

; ); 7/17/10, 1:14 AM
EnigmatiCore said...: I have mixed feelings about this ruling.; 7/17/10, 4:56 AM
traditionalguy said...: If the FOIA allowed the capture and release of all of the private e-mails, then we would see why the government agencies take 3 months to do 3 hour jobs. They only work once every 3 months like the students cramming for a final exam who never cracked a book.; 7/17/10, 6:53 AM
Scott said...: Open records laws are a tremendously good thing for a democracy. I think though that reasonable lines should be drawn so that taxpayer resources aren't wasted on onerous compliance with frivolous requests. ("Please send me the archives of all emails eminating from the Department of Natural Resources for the past five years."); 7/17/10, 7:44 AM
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