The Web 2.0 Paper Trail Problem

Social networking technologies are creating potential new challenges for government transparency. As more agency employees use Twitter, Facebook and similar external sites, some state and local IT officials are asking whether those communications should be archived for public viewing. The problem is that agencies don't know how to archive communications made on third-party social networks.

For now, public officials are delaying this puzzler because the Freedom of Information Act (FOIA) has no mandates related to them. But Melinda Catapano, city records manager for Grand Junction, Colorado, who also is a lawyer, predicts the courts will eventually force agencies to provide this data. Examining the likelihood of this issue becoming a problem could help public officials discern the appropriate priority to solving it.

The Problem Approaches

Catapano follows legal trends closely and thinks a mandate from the courts could be imminent. "There are so many ways a court could say this is connected to official agency work, ergo you better be able to produce that record," she said.

Elayne Starkey, chief security officer of Delaware and FOIA coordinator for the state's Department of Technology and Information, agrees. As citizens become increasingly accustomed to accessing more types of communication archives, Starkey says that social network archives will be a logical expectation.

Catapano pointed to a judgment from the U.S. Court of Appeals for the Ninth Circuit that the U.S. Supreme Court recently agreed to review as an indicator of what's to come. In City of Ontario v. Quon, the Ninth Circuit held that the Ontario, California, Police Department violated an officer's privacy rights by examining an archive of text messages on his city-issued cell phone. If the U.S. Supreme Court reverses the circuit court's decision and says producing an archive of employee text messages is legitimate, that could have implications on other electronic communications, in Catapano's view.

"To the courts, it may well be a series of short leaps: from text messaging via pagers to electronic communications in general to electronic communications via external sources," Catapano said. Twitter and Facebook could easily be among those "external sources," according to Catapano.

One difference is that state and local governments currently have no guidelines or may not be familiar with programs that could archive external social networking posts. By contrast, a mechanism does exist for retrieving text message archives if that becomes required.

Catapano admitted that she, like numerous other government officials, didn't have a clue as to how to archive external social networking posts. "It would probably be a good master's thesis because everybody needs those answers and everybody seems to be avoiding the problem," Catapano remarked.

Michele Hovet, IT director of Arvada, Colorado, said she agreed the challenge of archiving social networking posts is on the horizon. "Right now, we're drawing a line by policy. If it's hosted on an external entity that we don't have the control over, we will not include it in an open records request. We will not have to archive it," Hovet said.

"In the future will that change as these tools are used more and more? I think it will."

Riding E-Mail's Coattails

Given that technology already exists for archiving e-mails, Peter Larson, manager of the IT department for Douglas County, Colorado, suggested that e-mail might be the mechanism IT departments use for storing social network postings. For example, he said an agency could easily attach a program to its e-mail system enabling employees to post to social networking sites through their government-issued e-mail accounts. Larson theorized the user experience wouldn't be all that awkward. After all, agency workers already have their e-mail accounts handy anyway. Why couldn't they track communications on Twitter, and then quickly click their Outlook tabs and send necessary tweets via e-mail?

Services performing such an e-mail-to-social networking site function do exist on the Web for free, but Larson said an agency would need to build its own to ensure that it was reliable."If you were going to be on the hook for producing that archive, you would have to implement some sort of system you could have confidence in," Larson said.

It's also conceivable that social networks could e-mail copies of postings to users. For example, e.Republic, Governing's publisher, runs message boards for a local government collaboration program called Digital Communities that send out precisely that type of e-mail.

Only time will show how state and local governments tackle this question as lawyers enforce it as a priority.