If you’ve been part of any of the Webinars or talks I’ve been part of about social media and government, you’ve known about and been awaiting a Washington Supreme Court decision about social media and government. It’s out, and it’s pretty awful. Well, the decision itself seems fair, because access to public records is a cornerstone of democracy. But the implications are scary, oddly enough, for open government and public participation in that democracy.
This is a classic case of how bad practices make for scary court cases. The story began with a former Shoreline council member who did something that most of us would never even think to do: eliminate part of an email that was being provided for a public records act request. She’s off the Shoreline council now, and thank God for the people of Shoreline.
The case is complex, but here’s there the court landed: the public is entitled to see the underlying coding involved in producing electronic messages. That *could* mean that the public is entitled to see the coding involved in posting one of my update on my Facebook page. I might change my Facebook posting in reaction to public comment; the court is saying I need to not just have a printout of the before and after, but the original electronic coding.
Here are some selected comments from the court’s ruling, which you can of course also read in its entirety: Here’s how metadata is defined in the court decision (citations for the various definitions are in the decision:
Metadata is quite simply data about data,or hidden statistical information about a document that is generated by a software program.
Metadata’ is ‘informationdescribing the history, tracking, or management of an electronic document.
Examples of e-mail metadata “include, among about 1,200 or more properties, such information as the dates that mail was sent, received, replied to or forwarded, blind carbon copy . . . information, and sender address book information.”
Metadata from electronic files can include “‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)
Holy Sugar. I don’t have access to the coding that produces Facebook. I also don’t have access to the underlying coding of Blogger, which I’ve been using five years for my city council blog. Neither does any elected official or government entity.
I’m eager to hear what lawyers think. This would not be so urgent but it’s *mandatory* to pay a monetary penalty if a court says you violated the public records act. A court can’t rule ‘Well Walter Neary wasn’t trying to hide anything when he used Facebook. In fact, he was trying to be more open on Facebook, alerting people to what’s going on so they can know and participate if they want. So we will tell him to stop using Facebook, but not charge him a penalty.” They have to charge a penalty, if I understand the law correctly, and a court decides I need to have the underlying code of Facebook on file.
The Washington court says …”Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. Our broad PRA exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information. We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”
What an odd twist. Of course the public is entitled to records. I use Twitter, Facebook and my blog to tell people information that they like to know about government. That’s to encourage participation and education. I recently asked people if I should continue the blog. I got back comments like …
I appreciate the information I get from your blog which shows up on Facebook from time to time. Don’t stop communicating with us in some way, whether by blog, Suburban Times, Facebook or something else!
While I do not read it 100% of the time, it certainly is of use. I
travel to your blog on the internet when there is something you are
talking about that is of particular interest to me. Additionally, it
helps connect you to the people you serve. There are other members
of the City Council who while are excellent and hard working, slip
from the public’s mind. The blog also makes you seem more
approachable for issues related to the city.
I definitely follow your blog. It helps me to see a bit behind the curtain of City Hall without having to attend council meetings. Plus, it’s another local voice to listen to online.
But if I can’t control the metadata …. do I have to stop using these vehicles?
So now I await the word of lawyers and others as this case gets interpreted. If elected officials and government entitles get quiet in social media, this case would be why. This decision is not a surprise; the next step may be to ask the Legislature for some clarification. The public is entitled to see the records of its government: I’ve been fighting for that in one form or another since I became a newspaper reporter in 1983. Social media is a great way to communicate, but no one’s going to use it if it means paying big penalties out of tax dollars.
PS – You’ll note that the case also involved access to a personal computer, which was the subject of a dissent by some of the judges. They didn’t argue about the metadata matter, just about the access to the home computer, which to me is a separate issue. I’m not even getting into that topic: My main concern is, can government and elected officials in Washington use social media when we don’t have access to all the metadata involved but would still be expected by a court to produce it?