Sep 17 2008

Sarah Palin’s right to privacy?

Published by at 2:46 pm under Government,Hacking,Privacy

This seems to be my week to talk about privacy vs. disclosure issues.  Between declaring that “social networks will be the downfall of civilization” and Vice-Presidential candidate Sarah Palin’s Yahoo email showing up on Wikileaks, I have more ammo and motivation and subject matter than I’ve had to write on for quite a while.  So here goes some of my thoughts on Palin and her right to privacy vs. public disclosure.

Let’s get something clear from the start:  The person or group calling themselves Anonymous have committed a crime when they cracked Sarah Palin’s Yahoo account.  They committed a crime that will garner them national attention and if the FBI and other law enforcement agencies aren’t already hot on their trail, you can bet they will be soon.  And if the crackers aren’t at least a little bit worried about that, then these guys are just plain stupid.

Sarah Palin has a right to privacy.  I don’t care that she’s campaigning hard to become the second highest politician in America and possibly the world, she has every right to expect that what goes on in her home, behind closed doors, should be her business and not ours.  That includes her phone calls, her voice mail and her email.  She has every expectation that the aspects of her personal life that she wants to keep private should be kept private. However, and this is a big ‘however’, the moment that she crosses the line from private citizen to public figure, most of that expectation goes out the window.

There are a number of disclosure laws affecting public officials that mandate that all email and other communication relating to their public office are the property of the government and the public.  This starts with the Freedom of Information Act and works it’s way out from there.  I wasn’t able to find the laws specific to Alaska, and I’d appreciate any links other people have, but I know there are a number of explicit laws at the national level supporting this.  Public business has to be conducted using public resources and we, as the public, have a right to review the email our government is sending.  That’s in theory, of course, since in reality getting a FOIA request pushed through the system is much more than most of us have the time and energy to do.

Politicians know this, and in response often try to avoid email and voice mail, having many sensitive conversations face to face or via other, un-monitored means, just so the public won’t be able to review the information later.  Palin might not have been using her personal email in an effort to remain un-monitored, but the evidence is definitely shows that she was conducting state business using non-state resources.  Something that, as the Governor of Alaska, she had to know she shouldn’t be doing.  Either that, or she was incompetent and shouldn’t have been Governor to start with, but I’m willing to give her the benefit of the doubt.

Politicians and celebrities walk an interesting and difficult path.  On one hand, they have a right to expect to have private lives.  On the other hand, they’ve made a conscious decision to place themselves in the public eye, removing many of the expectations of privacy that most of us take for granted.  They knowingly enter a career that requires giving up their privacy in order to gain notoriety, power and exposure.   In other words, they’ve traded a certain portion of their privacy for all the fame and fortune that goes along with being in the public eye.

This doesn’t mean that they give up everything.  They can still have privacy at home, they still can have private phone calls and they can still private, personal email.  But it’s imperative that they respect that privacy and the separation of their private and public lives, or they give up that expectation of privacy.  If this was about Sarah Palin and the emails she sent to friends and family, I’d say acknowledge that a breach had happened, stuff the email back in the box somewhere and move on.  But Governor Palin, as opposed to Sarah Palin, was conducting state business via her personal email, and that takes everything she could have kept personal and makes it a matter for the public eye.  Given the choice between preserving a public figure’s privacy and safeguarding the public by exposing any communication that might be related to governance, the rights of the public have to win out every time, without exception. 

I feel bad for Governor Palin.  The emails she sent from her personal account might be completely innocent and only occasionally impinge on her position as Governor.  But the fact that she’s sending government related email from her personal account places that account squarely in the public domain and may even mean she’s broken the law in doing so.  One defense is that this is something everyone does, but that’s a defense my six year old would use, not something a potential Vice President should use.  Another is that the hackers did something illegal and that this some how absolves Governor Palin of any wrong doing.  But this isn’t the way the law works.  Neither is a valid defense.

This should play out in a lot of fun ways over the next couple of days.  I don’t often dip my toe into politics, so I fully expect to get some interesting and possibly vehement comments.  But for me this is less about politics and more about taking the step from being a private citizen into the arena of serving the public.  There’s a trade off that I’m sure not all public officials realize until it’s too late.  I wonder if Sarah Palin thought about the privacy she’d be giving up when she became Governor Palin.

21 responses so far

21 Responses to “Sarah Palin’s right to privacy?”

  1. PortcullisChainon 17 Sep 2008 at 2:54 pm

    What state business was discussed? My understanding was that the discussions posted in the screen shots were personal or related to someone’s (Lt. Gov?) political campaign, which in my understanding falls outside of state business.
    -PC

  2. Martinon 17 Sep 2008 at 3:18 pm

    As far as I’m concerned, if she’s talking politics with someone on her staff, it has become state business. If the Governor of Alaska is talking about the Lt. Governor of Alaska, that’s state business. If there’s even a hint of her talking to another politician about something that impacts the state of Alaska, it’s state business.

    So yes, I’d call the evidence shown on Wikileaks to be state business.

    Martin

  3. Martinon 17 Sep 2008 at 3:20 pm

    Here’s the header of an email from Governor Palin’s account that is definitely state business:

    Ruaro, Randall P (GOV)
    Draft letter to Governor Schwarzenegger / Container Tax
    Thu, 8/28/08 12KB
    Read

  4. Joe Franscellaon 17 Sep 2008 at 3:26 pm

    Haven’t seen these terms coinded yet, so I am: Yahoo Gate, email Gate….

  5. PortcullisChainon 17 Sep 2008 at 3:43 pm

    To your first point, unfortunately…..your view doesn’t matter, the law does, and I believe there is a fine line between politics and official state business. A political campaign is a contest that a private individual undertakes and much to your contention that privacy goes out the window, Mrs. Palin and her husband and children have the right to privacy. I understand that her daughter’s phone number was obtained from the emails as well as her husband’s personal email. That is just plain wrong.
    The second point of the header from Randall Ruaro to Gov. Palin. That email was sent by Randall not Mrs. Palin. As you well know we can’t control what emails are sent to us by other parties. The fact that some lawyer named Randall Ruaro in Alaska sent her an email re: Arnold’s container tax (whatever that is) isn’t evidence that the Governor did any wrong doing. Maybe he was sending information on something she would know about in her campaign. Something that she would be expected to know on the campaign trail. Maybe he sent it as a concerned citizen to the candidate he’s supporting for Vice-President about an issue he cares about. The real issue is the fact that private citizens identities were compromised, not this non-issue of purported state business being done on a yahoo account.
    -PC
    By the way, here is a non-verified account of the hack.
    http://michellemalkin.com/2008/09/17/the-story-behind-the-palin-e-mail-hacking/

  6. Mikeon 17 Sep 2008 at 3:53 pm

    Thanks Martin, you nailed it.

    My thoughts… and of course, I could be wrong… I think this will turn out to be a fraud and the screen shots that everyone is seeing and ranting so much about will be discovered to be fabricated and completely false. Can we say “Photoshop”?

    But at what cost… if this turns out to be a fraud it wont matter… it will get hours upon hours of front page press now… and when the fraud is proven it will be in section C page 4.

  7. Martinon 17 Sep 2008 at 4:12 pm

    PC,

    First off here’s a link to more information on the Alaska law and it’s meaning.

    http://sunshinereview.org/index.php/Alaska_Public_Records_Act

    “Public records” are defined as books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency.

    In 1990, the state legislature amended APRA to expand the definition of public records to specifically include drafts and memorializations of conversations.

    So, according to this definition, yes, this counts.

    On the second point: She can’t control what someone sends her, but she can control who she gives her private email to. If she gave a private email to a lawyer without explicit instructions that it was only for personal communications, then she was implying that it was okay to have state information sent to that account. Additionally, the string of emails show that this was not an exception, but instead the rule for her email; it’s only the rare email in the list that appears to be purely personal.

    Martin

    PS. Thanks for the link

  8. Martinon 17 Sep 2008 at 4:36 pm

    Mike,

    The Threat Level author did follow up on several emails and had at least one that was verified as coming from Palin.

    Martin

  9. Dale Larsonon 17 Sep 2008 at 5:00 pm

    Whatever the law may say on paper, wouldn’t it be hypocritical for Palin to object to having her private email read?

    Oh, wait, it’s the Government that’s supposed to be able to do that, not the people. I’m assuming Palin agrees with Republican’s on this point, but I’m not sure if she knows the details of the Patriot Act more than the Bush Doctrine.

  10. Shaun Dakinon 17 Sep 2008 at 5:07 pm

    All very interesting points.

    I lead an organization that is advocating for a Voter Privacy Bill of Rights.

    What would it be? Essentially the right for every citizen to opt out of unwanted political communications.

    - direct mail
    - email
    - robo calls
    - door to door canvassing.

    I had an Op-Ed in the Washington Post this past weekend. If you are interested, here is the link: http://www.washingtonpost.com/wp-dyn/content/article/2008/09/12/AR2008091202658.html

    Regards,

    Shaun Dakin
    CEO
    StopPoliticalCalls.org

  11. durakjeon 17 Sep 2008 at 11:14 pm

    The use of private email accounts to conduct government business in order to circumvent public records requests and other oversight has been extensively documented elsewhere — particularly as regards the Bush White House. The use of this technique by Palin and her staff has also been widely reported lately.

    Palin routinely uses a private Yahoo e-mail account to conduct state business. Others in the governor’s office sometimes use personal e-mail accounts too.

    The practice raises questions about backdoor secrecy in an administration that vowed during the 2006 campaign to be “open and transparent.”

    Even before the McCain campaign plucked Palin from Alaska, a controversy was brewing over e-mails in the governor’s office. Was the administration trying to get around the public records law through broad exemptions or private e-mail accounts?

    Anchorage Daily News

    Interviews show that Ms. Palin runs an administration that puts a premium on loyalty and secrecy. The governor and her top officials sometimes use personal e-mail accounts for state business; dozens of e-mail messages obtained by The New York Times show that her staff members studied whether that could allow them to circumvent subpoenas seeking public records.

    NY Times

    See also ABC News, KTUU Anchorage, etc., etc.

  12. Benon 18 Sep 2008 at 4:00 am

    A few random thoughts…

    1) While I agree with the points about privacy, I’m not sure that I feel so inclined to apply them to someone who so clearly opposes non-interference in the lives of others. She’s an extreme fundamentalist Christian, which translates into a strong desire to meddle in the affairs of others, including behind closed doors at home. In the Bush-Cheney world, the only privacy is theirs, not that of the average citizen. Why then extend such a courtesy to a candidate who only wishes to extend and expand such a sad state of things.

    2) Who authorized her to use an unofficial email account for official business? Moreover, who lacked the balls to tell her this was strictly prohibited? There’s no way the data retention on those emails is in keeping with federal (and state, if they exist) regulations. As several have mentioned, this is directly corollary to the White House “losing” hundreds of rather important emails that now cannot be admitted to legal proceedings.

    3) This incident should highlight in general that Palin, like McCain, represents 4 more years of the same garbage. Puts a high premium on secrecy – that’s just lovely! Just what we need – a fundamentalist with a secret agenda as strong as the current VP’s secret agenda. Bloody hell, folks, this is scary! Yes, the hack was illegal and should be punished, but it exposes a highly relevant area of concern for voters.

  13. Mikeon 18 Sep 2008 at 6:41 am

    I still stand by my thought that this is going to turn out to be a fraud… Let’s assume, granted lets agree that YES in fact her email accounts were hacked, that part I am not disagreeing with. Let’s also agree that some (a single so far) emails are valid and verifiable. This much I believe to be fact. (Passwords suck) There is no way that anyone with half a brain cell would assume that using a personal (Yahoo) email account would believe that they could do so for government business and keep if off the radar. IF this was the case, her emails to “The Govenator” would have been sent to T-1000@yahoo.com…. NOT his state of California email account. It is basic Government employee training (right down to the guy who changes the mints in the bottom of the urinals) that you do not do anything on the systems that you don’t want to read about in tomorrow’s news paper. Non-repudiation Look it up. In addition to that: The email accounts have been deleted from Yahoo… If that is also fact it would be destruction of evidence, a serious crime, which I also doubt her or Yahoo would be willing to so publically commit.

  14. Aaron Guhlon 18 Sep 2008 at 8:02 am

    In response to Mike’s hypothesis that the screenshots will turn out to be fake. I don’t think that is the case. For one, there is just too much information that would need to be fabricated that it would be a lot of work to go through for not much gain.

    Another thing is this just further stirs up thoughts about the Bush administration’s lack of technology management practices. Back when they were trying to recover lost emails. Frankly it scares me that a top level government network can lose emails on a system. I work at a credit union and it would be very hard to lose an email completely. There are so many copies of emails that go through our system through archives, backups, databases, etc. It would require multiple levels of access and multiple people to be able to destroy all copies of an email.

    Sarah Palin’s poor use of email just makes me cringe further that we could have another administration that manages their technology poorly. I agree with everything you said Martin. It was a very well written article.

  15. PortcullisChainon 18 Sep 2008 at 11:28 am

    Martin,

    Your two points come back to my original point. I do not believe political campaigns qualify as “public records”. She is a private individual running a campaign or talking to friends (she’s a politician, who else is she going to be friends with but other politicians) re: their political campaigns. Again, the email from the lawyer re: Arnold & the container tax could be a concerned citizen talking to his candidate about his concerns, not an official government policy. Also from the link durakje provided, her press secretary says this…She is allowed to keep e-mails confidential if they fall into certain categories, such as “deliberative process,” said her press secretary, Bill McAllister. Obviously someone who is the governor of a state and a candidate for vice-president isn’t just willy nilly ignoring the ramifications of what the law says without a care in the world. They have come to the decision that what she does is legal and it ultimately will be the courts to decide if she has violated a law. My broader point is that there is not definitive proof that any “state business” (sans political campaigning) was done through this email account. I would think the burden of proof in this case would be on the detractors but I’m not a lawyer. I simply think the woman should be able to have a way to communicate with friends, family and yes political constituents with out everybody in the world invading that. I would believe it even if Obama had a similar situation.

    Dale,

    Put away your tin-foil hat man……are you really comparing someone’s email account that is used to communicate with family with snooping on terrorists that use technology to plot to kill people. Putting aside Bush’s inept running of this situation (I will not call it a war, because I’m offended by the term just like I am with “War on Drug, Crime, Poverty, etc.) we find ourselves in with radical Muslims, why would we not eavesdrop on people who have declared an interest in killing Americans? They aren’t eavesdropping on Grandma Ruth out in Missori. They are listening to conversations that go overseas that have ties to terrorists. You know…..the bad guys. I live in the L.A. area and if we experienced an attack here like the ones on 9/11 and I found out that the government had the opportunity to stop the attack by eavesdropping on the terrorists planning that attack and failed to do so……I would be the first to march on the Whitehouse with a pitchfork and torch to demand the head of the person responsible. They want to kill us man….you, me, your family, your children……let them listen. Your comments, quite frankly do nothing to advance the dialog.

    Ben,

    (1) Good lord man…..so “extreme fundamentalist Christians” don’t have rights. Because I like a good freak show, please tell us how big bad Sarah Palin is going to impose her theocracy on the good people of America…..no…….the WORLD!!!!
    (2) Ummmm…..see my original posts and replies to Martin. I don’t believe it was “official business”.
    (3) It just shows that she has private communications with family and friends. She even received email from…..her husband, son and daughter….shocker. Why I even hear that there was a picture of her daughter and son in those screenshots. Scandalous. Your comment about a “fundamentalist with a secret agenda” speaks volumes about you. In your view, is it ok to actually stand for what your religion preaches and let said religion dictate your “world view”? Or are you so jaded by politicians that you expect them to wiffle and waffle re: any subject as the political winds take them? The woman’s private email was hacked, her and her families personal information (including her 17 year old daughter’s cell phone number) was posted on Gawker for the entire world to see, and the best your little mind can come up with is……..outrage over Sarah Palin’s religion.

    -PC

  16. Martinon 18 Sep 2008 at 12:22 pm

    “She is allowed to keep e-mails confidential if they fall into certain categories, such as “deliberative process,” said her press secretary, Bill McAllister.”

    I don’t have time to respond to your whole response, but I do want to point out that this is Bill McAllisters interpretation of the law, not the law itself. IANAL but I from what I read of the law, this is wishful thinking on his part, not the letter of the law itself.

    We’ll have to agree to disagree on what constitutes ‘official business’. I feel that anything that impacts her role as Governor is official business, whether it’s a final decision or not. And I think the law, as written, is closer to my interpretation, but once again, IANAL.

    Martin

  17. PortcullisChainon 18 Sep 2008 at 1:18 pm

    I don’t believe it is an interpretation. It’s seems pretty clear from your link here, http://sunshinereview.org/index.php/Alaska_Public_Records_Act, that this is an allowed exemption.
    “The Alaska Supreme Court ruled that there is a limited “executive” or “deliberative process” privilege that protects communications between the governor and his or her aides about policy matters in the case, Doe v. Superior Court, a 1986 decision. This decision related to internal communications about advice, opinions and recommendations. ”

    Your point of IANAL is valid for me too and I will agree to disagree with you. Thanks for the discussion.
    -PC

  18. [...] Sarah Palin’s right to privacy? [...]

  19. Mikeon 25 Sep 2008 at 11:45 am

    The question is not “is it legal for a Gov’t official to use personal email for business matters.” At issue is whether it is legal/illegal or right/wrong to access someone’s personal information, email in this case, and post it on the Internet for all to see. Quite simply, there is an expectation of privacy from an individual because email is password protected. The fact that David Kernell used malicious methods to obtain the password is just plain wrong. If the front door of my house is unlocked you have no right to enter. Nor do you have a right to enter email accounts just because you figured out how. Law enforcement would need to obtain a warrant before accessing an account lest the “evidence” be inadmissible in court. This past week, on the other side of the political fence, Lawrence Yontz, a former State Dept. Intelligence analyst faces up to year in prison for accessing passport files. Remember the Obama passport breach? Well Mr. Yontz was ONLY accessing records, not posting them for public viewing. What he did is wrong and against policy and protocol. By the way, he also allegedly looked at over 200 records, including John McCain. So what? Let’s not politicize the issue. Hacking email accounts is wrong and posting private information is another wrong.

  20. Benjamin Wrighton 04 Nov 2008 at 10:47 am

    The Troopergate report is out. The report recommends the governor’s office review its policy on use of personal e-mail accounts. On account of Open Records Acts, state governments are wise to insist that employees (including governors) route all business e-mail through a central e-mail archive and to encourage employees to take all personal e-mail to personal accounts. –Ben http://legal-beagle.typepad.com/wrights_legal_beagle/2008/08/local-government-e-mail-and-the-freedom-of-information-act.html

  21. morison donyon 12 Apr 2009 at 8:13 pm

    Just grabbed the feed… thanks for posting this.

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