Does the law matter? I think it does. And because I think the law matters, I must take exception to a few of Grim's statements on the Cronin brouhaha. He begins by putting forth a hypothetical that differs in several crucial respects from the Cronin case and those respects are not distinctions without a difference. Grim's hypothetical begins:
Let's say an FBI agent started a blog called "The G-Man as Citizen." On this blog he investigated liberal interest groups and posted apparently factual information about the special interests and big money behind their proposed legislation.
Federal (and some state and local) employees are prohibited by law from participating in partisan political activities at work. The FBI is subject to an even stricter set of rules than those applied to other government employees. So the first question to ask would be: is there any evidence that Grim's G-man blogged on a government computer or during working hours? Because if he did, that alone puts him in violation of the law.
Because of the Hatch Act, I never sent even politically themed jokes to my husband's work email, nor did he ever send such materials. That's how strict the law is. Because my best friend (a liberal Democrat who voted for Kerry and Obama) works for Social Security, she doesn't send or receive political jokes or any other political material from her work email account.
EVER. UNDER ANY CIRCUMSTANCES.
Has my progressive friend been "stripped of her right to question or challenge the government"? Of course not. It's just that if she wants to do so, she must do so on her own time, using her private email account. That's the problem with Grim's argument: he is conflating the rights and privileges of private citizens with their duties as employees of the government. He is also conflating public records with private ones:
The fact that a man works for the government does not, and should not, strip him of his right to question or challenge the government. To some degree we accept limits on that in the military, but only to some degree: and the military is a very special case.
...In the absence of any criminal accusations, security in one's person and papers should be absolute. The fact that the government owns the email sever is no more germane than the fact that it may own the letterhead and envelopes on which Dr. Cronon may have written a sealed letter; that fact bestows no right on them to open the letter and read it. If they wish to do so, they should get a warrant. If there is no cause for a warrant, they can go to hell.
Has anyone tried to strip this man of his right to question or challenge the government? If so, I must have missed it. The fact of the matter is that Grim's G-man is prohibited BY LAW from participating in partisan political activity AT WORK. And the Hatch Act applies to state and local employees if the entity they work for accepts federal funds (as do nearly all state universities). But there's yet another law that applies to Prof. Cronin: Wisconsin's Open Records law. And that law is stunningly broad. I don't have time to dissect it in detail, but here's a taste:
WHO CAN REQUEST RECORDS: "[A]ny requester has a right to inspect any record." Wis. Stat. § 19.35(1)(a) (2003-04)
PURPOSE OF REQUEST: "Except as authorized under this paragraph, no request . . . may be refused because the person making the request is unwilling . . . to state the purpose of the request." Wis. Stat. § 19.35(1)(i)
These brief excerpts are by no means a thorough examination of Wisconsin's Open Records law, but they are sufficient to rebut the notion that government employees, using government sponsored email accounts, have the same right to privacy as private citizens. They absolutely and categorically do not.
As for the notion that Professor Cronin would be "silenced" if he were asked to obey the same laws any government employee is bound by, that is a canard. He may participate in all the political activity he wants to... on his own time and so long as he does so in his capacity as a private citizen.
The real irony here is that, though I am NOT employed by a federal, state, or local government, I do not engage in political activity using my company-issued email account. I do not do so because, were a politically charged email of mine to fall into the wrong hands, I would be creating the appearance that my company encourages or endorses my political beliefs, and that appearance could damage my company's reputation or business interests. When I am at work, I am not "Cass" - I am Company X's Technical Manager. That is what my signature block says - it does not list my home address and phone but the address and phone number of my employer.
Yes, it is an old fashioned idea - the notion that private actions are private and that while we are at work, using computers and resources we don't own, we ought to be doing our jobs and not engaging in other pursuits.
It's also a damned good practice.
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