Electronic Data Records Law | How to Win E-Discovery

FOIA Meets Electronic Mail

Populist Politics

Publish Internal Records on the Web?

Freedom of Information Act requests will eventually motivate governments will publish on the web large portions of their official records, including the emails and text messages of officials and administrators.  Federal, state and local governments are being swamped with FOIA requests for email records of officials like county commissioners.

As more and more of these records are released to the public, people publish them on the web.  AnnArbor.com, a news organization, has assembled and published more than 2700 pages of emails of the city council members for the municipality of Ann Arbor, Michigan.  The records cover messages exchanged among members during the council's public meetings.  The municipality had released the e-mail records, piecemeal, on paper in response to numerous FOIA demands over time.  The news outlet then gathered them from the various requesters, scanned them into digital form, organized them and published them on the web.  As a consequence government became more transparent in that city.

As technology advances, and as populist activists make more use of FOIA, it will become easier and more common to find and assemble records like these on the open Web.   Ever-greater transparency in public administration is an inexorable force in the 21st century.

Wise government leaders will embrace radical transparency.  Instead of dribbling records out in small units, they will jump straight to the endgame and publish an ever-growing swath of their internal records and communications directly on the web and make them easily searchable.  

Meanwhile many politicians and managers will live in denial and fail to understand how technology is changing society.  The Ann Arbor city council, for instance, explicitly decided in October not to publish on the web a database of emails similar to the one that annarbor.com compiled and published.

–Benjamin Wright

Mr. Wright teaches eDiscovery and eData Security Law at the SANS Institute, where he stresses the growing role of web publicity. 

Surveillance Technology Changes Law Enforcement

Municipal Government Referendum on Digital Video and Photography

FOIA as Data-mining by Citizens

Computers change how police investigations work.  Take a traffic citation, for example. In the past, for a police officer to issue a traffic ticket, the officer had to be present at the scene and had to talk to the motorist face-to-face.  At an emotional level – as well as an administrative one -- the police officer was deterred from issuing tickets for minor, technical violations of traffic laws.  

For example, if an officer observed a motorist not quite clear an intersection before the traffic light turned red, the officer might think twice before chasing the motorist down and issuing a citation.  To pursue the motorist takes time away from other duties.  Then, the motorist may argue the officer’s observation was wrong.  Further, the motorist may confront the officer as a human.  The motorist may say by words, body language or the expression on his face, “you are a jerk for issuing me this frivolous ticket.” Police officers don’t like being told (even politely and subtly) that they are hyper-technical jerks.

Digital technology changes this legal proceeding.  A red light camera at an intersection transmits electronic records to a police officer (detective) who is not standing on the street, but seated in a comfortable office.  The records provide evidence that is more fixed than mere memory.  The officer can review the digital evidence in no time and issue the citation with the click of a button.  For the officer, the legal investigation and decision are like playing a dull, unemotional video game.  The officer may issue many more citations than in the past.

Automated traffic cameras can make a motorist angry.  The motorist loses the ability to discuss the situation with the investigating officer at the scene, where the motorist might talk about the danger of slamming on the brakes when a light changes.  With computer enforcement, the motorist just gets a bland notice in the mail with a photograph and possibly web access to a computer video of the event. 

Jim Ash, a citizen of College Station, Texas, feels that the dehumanization of law enforcement is an infringement of privacy, a civil right.  In our electronic age, privacy is an ill-defined notion, but it resonates with people in a democracy.

Mr. Ash is leading a grass-roots voter referendum [see Footnote] to ban red-light cameras in College Station.  He is exploiting the power that modern technology affords individuals – a web site and numerous freedom of information act (FOIA) requests for discovery of voluminous electronic records (including email) maintained by the City of College Station and other local governments in Texas.  He says he has uncovered an email from the mayor acknowledging that red light cameras will cause more rear-end collisions, while possibly reducing other collisions. (Most mayors would prefer that their email be withheld from political activists like Ash.)

Ash has collected about 1000 verified signatures from College Station voters, enough to cause the referendum to appear on a forthcoming ballot.  He plans to deliver the signatures to City Hall management in a rally scheduled for around Noon, July 16, 2009.

Ash is promoting the rally with radio commercials playing in College Station.  Following are two MP3s of the commercials.

Download See you there Track 1

Download You want to see this Track 2

Update:  The College Station City Secretary has confirmed that Ash and his team collected and delivered more than enough signatures to place the red light issue on the ballot for the next election.   Ash has formed a political action committee named Take Back Your City.

Update November 4, 2009:  According to the local TV station, the voters of College Station, Texas, voted to approve the petition initiative against red light cameras.

Update:  This photo shows workers deactivating the red light cameras in College Station, November 24, 2009:

–Benjamin Wright

Mr. Wright delivers training on cyber defense law and ethics under the SANS Institute.

Footnote:  When I originally wrote about Jim Ash's voters' effort in College Station, I called it a "referendum," not having researched or thought about the technical difference between a referendum and a petition initiative under the city's charter or under the Texas law of municipalities.  I have since learned that the effort is a "petition initiative," not a referendum.

Electronic Mail Message Forged

Electronic Evidence | Forensics and Authentication in Police Investigation

For responsible parties like corporations and government agencies, a reason to retain all their e-mail, text and instant message records is to refute forgeries of e-records.  Thorough email archives (including each attachment) provide forensic evidence to invalidate false claims.

Just ask Australia’s prime minister, Kevin Rudd.  His political opponents tried to embarrass him with an electronic mail record purportedly from his senior advisor Andrew Charlton.  The e-mail appeared to show corruption; it appeared to show Rudd’s government conferring a business advantage to Rudd’s friend John Grant.

But fortunately for the government, it retained its own e-mail records for the time in question.  An investigation revealed that the scandalous e-mail was a forgery!

The investigation proceeded in two steps. First it examined the alleged sender’s digital records.  “Searches by the Department of Prime Minister and Cabinet and Treasury of Dr Charlton's computer and the system of the public service had found nothing.  ‘There have been exhaustive searches conducted on Dr Charlton's computer email system and no such correspondence can be found,’ Mr Rudd said.”

Second, the Australian Federal Police (equivalent to FBI) conducted a forensic analysis of two computers used by the purported receiver of the e-mail.  "Preliminary results of those forensic examinations indicate that the email referred to at the centre of this investigation has been created by a person or persons other than the purported author of the email," said the AFP.

This revelation of course played to the Prime Minister’s distinct advantage.  He could show that his adversaries had based their attack on misrepresented facts.

The Strategy Lesson:  Unless you are a criminal, your e-records are your friend.  Had the government been destroying its records quickly, it would not have been so capable of exposing this fraud.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leader on ESI investigations.

US Interior Dept. Destroys Email

Printing of Electronic Mail as Federal Government Record Retention?

The Bureau of Indian Affairs (US Department of the Interior) suffered embarrassment in court for the deletion of financial e-mails by former Assistant Secretary – Indian Affairs, Neal McCaleb.  The e-mails contained important information about money the bureau was collecting and holding in trust for Indian tribes. McCaleb deleted the e-mails because his IT department allocated him too little hard disk space. Under department policy, he was expected to print important e-mails onto paper before he deleted them, but because of confusion about who was authorized and directed to do the printing, no one actually performed the tedious and unwanted task.

Officials like Mr. McCaleb don't naturally embrace clerical duties like printing of e-mails.

The case demonstrates  

1. how legally important e-mail records can be,

2. the folly of an IT department trying to save a couple of bucks by being stingy with hard disk space, and

3. how dangerous it is today to view printing as a way to preserve email (or text messages) need for purposes of internal control or funds management.

See Jean Pagano, “Special Master reports findings on deleted e-mails: Department of Interior described as ‘chaotic’,” Native American Press/Ojibwe News, January 31, 2003. This matter was part of the protracted “Cobell” litigation brought by Native Americans against the Department of the Interior. Cobell v. Norton, et al. Case No. 1:96CV01285 (D.D.C.).

–Benjamin Wright

Freedom of Information Act | Computer Records

Freedom of Information Act Requests Yield E-Troves of Documents

FOIA forces transparency in government, and transparency in turn forces revolution in the administration of public institutions – both national and local.

A FOIA requires government to disclose records to citizens upon request.  Remarkably, the quantity of available records relevant to any given request is skyrocketing as government agents adopt digital technology – databases, electronic mail, instant messaging, text messaging, Twitter, collaboration software and more – to execute the details of day-to-day government. The implications for democracy are profound.  So are the governance implications for enterprises of all descriptions.

Item One: Britain is in uproar over the expenses of Parliament members.  The row started when a journalist used the UK’s new FOIA to request records about M.P. requests for reimbursement of living expenses.  By age-old practice, the government covered M.P.s for the living costs associated with their official duties, but the specifics have always been hidden from public view.  Reluctantly resistantly the government prepared to turn over expense records under FOIA – though with heavy redacting to protect M.P. privacy.

But by this time loads of (un-redacted) M.P. expense records had been compiled into something that did not exist in the old days . . . a neat, convenient-to-steal electronic form.  This compact compilation of records enabled a whistleblower to spirit the records out of a government computer and into the hands of a newspaper.  The Daily Telegraph’s ensuing publication of complete, open details has embarrassed M.P.s in an historic scandal. British government will never be the same.  John F. Burns, “In Britain, Scandal Flows From Modest Request,” NY Times, May 20, 2009.

Item Two is Clark County School District, Nevada. Citizen Karen Gray requested under FOIA a year’s worth of the School Board’s e-mail, about 1500 messages.  A few years ago, records of such granularity did not even exist for a typical school board (or city/municipal commission, county management, state committee or board of trustees).  But e-mail has caused the creation of mounds of new records, which become fodder for any kind of legal investigation.

The District tried to delay disclosure.  It also tried to charge Ms. Gray $4000 for the costs of recovering the records (and filtering them for private/confidential data), but those costs reflect out-of-date, manual methods for compiling and reviewing e-mail records. The Nevada courts resisted the delay and the high charges.  The attitude of the courts was that the law favors inexpensive and generous disclosure. So the courts forced disclosure.

Ms. Gray’s case implies that Freedom of Information Act law is intolerant of governments that make their important e-mail records hard to recover.  A modern e-mail archive appliance makes the compilation and filtering of e-mail (especially that of executives, professionals, top managers, and board members) quick and inexpensive . . . consistent with the purpose of FOIA law.

–Benjamin Wright

Mr. Wright is an advisor to messagingarchitects.com, the visionaries in e-records management.