IN TODAY’S OPEN-SOURCE HEADLINES . . .
Still think what you write on e-mail is private? Still know that it’s not private but write it anyway because you can’t imagine anyone else would ever see it?
WARNING: Stop making injudicious comments and observations in e-mails, or stop making excuses when you’re exposed. Or hope nobody with whom you’re professionally or personally associated is target of a Wikileaks dump or subject of a FOIA request. You might get lucky and just be embarrassed or lose an acquaintance or two. Or, you could lose your job and career or end up in jail.
By now, you know about the Wikileaks dump of thousands of Democratic National Committee e-mails that apparently implicates U.S. Representative and DNC Chairperson Debbie Wasserman Schultz in swaying primary elections in favor Hillary Clinton. Defense One’s Patrick Tucker follows the leak down the rabbit hole to what may be its more nefarious meaning in “Putin Weaponized Wikileaks.” Tucker concludes, “Considerable evidence shows that the Wikileaks dump was an orchestrated act by the Russian government, working through proxies, to undermine Hillary Clinton’s Presidential campaign.”
Beyond the headlines about Schultz are those DNC e-mails with off-hand commentary that were funny when they hit send because they were quick-witted. Now, not so much. And the little disclaimers in your auto-signature are pretty meaningless: “The information contained in this message is intended solely for the individual to whom it is specifically and originally addressed. . . . any disclosure or distribution, or taking any action in reliance on the contents of this information, is strictly prohibited.” Blah blah blah blah.
Even if all the e-mails on your office server aren’t dumped on Wikileaks, they might be dumped in an IG report that’s followed-up by a series of Freedom of Information Act requests. One senior Army officer’s very promising career was brought to a quick end when the IG dug into a colleague’s e-mails on a completely separate matter related to illicit affairs.
STILL NOT WORRIED?
Email on private servers that is related to official business is apparently game for FOIA requests, too. Take a look at “Feds can’t hide outside emails from FOIA” by FCW’s Zach Noble. Noble reports on D.C. Circuit Court of Appeals’ decision in Competitive Enterprise Institute v. Office of Science and Technology Policy. In this case, the court held that “’[A]n agency always acts through its employees and officials’ . . . ‘If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.’” FedSmith contributor and lawyer Matt Tulley writes about the case in “D.C. Circuit Court Rules Private Email Accounts Subject to FOIA.” Tulley highlights that “’an agency cannot shield its records from search or disclosure’ under the Freedom of Information Act (FOIA) ‘by the expedient of storing them in a private email account.’”
I suspect the decision in Competitive Enterprises means that if you write about official business on your Google.Com account on your computer at home, then those e-mails are subject to the reach of the FOIA, as well.