There’s an awful lot here to think about.
The Texas Legislature may become the first in the nation to tackle whether tweeting and texting is being used to circumvent open meetings laws and whether the private devices of public officials can be subject to open records searches.
“They are new tools to communicate with constituents … and in some ways they are a better way to engage the public in the public policy process,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas.
But he told the Senate State Affairs Committee on Tuesday that the tools of the Internet and smart phones can lead to quorum and open meetings violations.
“Everybody here today has been texting and answering e-mails,” Elkins said. “It is not beyond the realm of possibility that a quorum of any body has texted each other to say ‘Yes, I’m voting and why.’ ”
State Sen. Eddie Lucio, D-Brownsville, said he would be concerned that people may think he was violating the law by texting during a meeting when, in fact, he may be dealing with a family emergency, a message from a constituent or even taking a moment to read the Gospel of the Day.
“Texting has become an excellent way to get staff to assist you during committee meetings,” Lucio said.
Committee Chairman Sen. Robert Duncan, R-Lubbock, said he is concerned about subjecting private computers and private cell phones to public information requests. He said he also is worried that public officials may end up having to carry three cell phones to cover public use, campaign use and private use.
“Everybody ought to have some expectation of privacy, even if they are a public official,” Duncan said.
No question there’s a can of worms here, but I am sympathetic to what the Senators have to say. Among other things, many public officials are parents, and I’d bet they get lots of text messages from or about their kids, just like millions of other parents do. Basically, this is in some sense no different than email, and we had this conversation about email some years ago. Everyone more or less understands the rules with email – what you can and can’t send from your official account, for example – and it shouldn’t to too hard to translate those rules for other forms of communication. Just codifying what’s allowed and what’s not will do a lot to discourage official business from taking place out of sight.
That doesn’t mean that there won’t be loopholes to exploit. That happens now with email. We’ve seen Governor Perry and various members of the Bush administration use personal email accounts for a lot of stuff that may have been official or campaign communications because they can avoid this kind of scrutiny by doing so. There isn’t always a sufficiently clear distinction between different kinds of communications, so any number of things can fall between the cracks by accident or design. With new technologies constantly emerging, those who want to operate in secret will always have an advantage, as the law will never be able to keep up. Confusion is an issue, too, as illustrated by this paragraph:
Not long after a Florida state commission recommended all agencies adopt policies on electronic messaging last year, the state’s utility regulation agency was caught in a scandal when staff gave out private Blackberry messaging accounts to utility lobbyists, who treated them to a Kentucky Derby trip. Though no texts were preserved, it gave the appearance of trying to circumvent the state’s open meetings law.
I’m not what they mean by “BlackBerry messaging accounts”, but as far as I know, one normally sends text messages to a phone number. You can use BlackBerrys for instant messaging as well, however, and I suspect this may have been referring to IM accounts, which can be on various services like AIM or Yahoo or Microsoft OCS if you are on a BlackBerry Enterprise Server that is configured to work with it. Personal IM usage would not be recorded on a BES, if that’s what these guys were doing. Getting a real handle on this will be a challenge, but using existing guidelines for email usage will be our best bet for where to start.
One last thing: The opening sentence of this story referred to “tweeting and texting”, but that was the only mention of anything related to Twitter. Say what you want about Twitter, it’s not normally used for clandestine communication. Yes, you can protect your tweets, and yes you can send text-like direct messages, but for the most part Twitter is the opposite of what needs to be dealt with here.
Like I said, it’s a complex issue. Vince makes a compelling case that what’s at issue is open records, not open meetings. I encourage you to read what he has to say on the subject.