Noah Bombard: Some things you just don’t want to say in e-mail
If you think we’ve got e-mail problems in Arlington, just be thankful you aren’t New Jersey Gov. Jon S. Corzine.
You won’t see The Garden State’s governor sporting the new iPhone. No Blackberry. No e-mail. The Jersey gov has gone offline — and for good reason.
Republicans in that state recently filed a lawsuit requesting a judge order the governor to turn over e-mails from a private e-mail account he created. They suspect the governor has used the account to conduct government business — namely talking with a powerful union president. The problem is the account isn’t on government servers. He created it on Gmail. Oh, and the union president, she’s the gov’s ex-girlfriend.
Should those conversations be made public? Well, a judge has yet to decide, but the case is one of the latest to showcase the increasingly mired world of “what’s private and what’s public” debate exacerbated by our ever-evolving world of technology.
Public records used to be rather clear-cut. If you were a government employee and you created or received a document, it was public info — unless its release would constitute a security threat or reveal other narrowly defined bits of information that our laws protect as private.
The first public debacle to showcase our shifting forms of communication came during the Nixon Administration. Remember the tapes? Nixon’s “secret” recordings of conversations in the Oval Office weren’t so secret after a judge ordered Nixon to turn the tapes over to a congressional investigator.
But we’ve come much further since the early ’70s. E-mail revolutionized the way we communicate at both our jobs and in our personal lives — often intermixing the two.
An ongoing controversy over e-mails at Arlington’s Ottoson Middle School is an unfortunate example of this. Personal messages typed mostly on school e-mail between a teacher and the principal appear to conflict with school e-mail use policy. The messages — laced with comments that suggest, but don’t confirm, a sexual relationship — appear personal, none of our business. The problem is, they are public employees typing on school e-mail. Where do we draw the line? And who will draw it?
One of the problems with our digital divide is the vast difference between how most of us see e-mail and how the law sees it.
E-mail is fast — instantaneous in many cases. For those of us who are on it all day long, e-mail is more conversation than correspondence. And the thought that our employer — or in the case of the public sector, the public — has a right to monitor these conversations seems like an invasion of our personal thoughts, like a frightening twist on George Orwell’s “1984.”
But here’s where our country’s pride in the right to privacy crashes head on with one of our other treasured traditions — open government.
The law — along with most large companies or public agencies — generally views e-mail as a document — no different than if you typed it up on company letterhead and printed it off. And indeed, in the case of our public institutions, which we fund with our tax dollars, don’t we want them to do their business in the open rather than behind closed doors?
Most of us have used work e-mail for personal purposes at one time or another — whether it’s to a spouse: “Hey, dear, can you remember to pick up milk on your way home?” Or a quick shot to a coworker about the Sox’s chances this year. We swap jokes, talk TV. Most of this — providing it’s innocent and infrequent enough — knowingly slides under the radar of many employers. We are, after all, human.
But there are lines. And when they are crossed, it can be costly.
A British recruitment manager lost his job in 2001 after sending an e-mail in which he called a colleague “a great shag” as one of several reasons why he had issued a pay raise to her.
John Crook said he felt he knew the colleague well enough to make the remark. It was just a joke, he said. There had been no sexual relationship between the two.
According to a survey conducted by the ePolicy Institute, here in the U.S., 21 percent of employers had their employee’s e-mails or instant messages subpoenaed in the course of lawsuits or investigations in 2004. That’s up from 9 percent in 2001.
“People still don’t seem to get it. It’s a written record,” a media law attorney recently said to me.
That’s even more relevant when your employer is a public entity. These are public documents and you don’t need to be a reporter or have special privileges to get them. All you need to do is request them — preferably in writing — and the agency which you request them from has 10 days to respond by either meeting your request or showing why the records you are seeking are exempt from public records law or require more time to assemble.
And the issue over how we communicate at work is continuing to evolve. According to a 2006 survey by the American Management Institute, about one-third of employees in the U.S. use instant messaging at work. The more instant form of electronic communication allows people to communicate in real time. Many employers even encourage it — finding that employees can more seamlessly communicate with colleagues in different departments or locations.
Our legal system has some difficult work ahead of it in the upcoming years. Can we find a way to keep our personal communications private while allowing our public business to be public? In the meantime, you may want to think twice before you click that "send" button. Or, like Gov. Corzine, you may want to just go offline.
Noah R. Bombard is a managing editor with GateHouse Media New England. He can be reached at firstname.lastname@example.org or at 781-674-7726.