Commentary and information about public safety and security, intelligence and counterintelligence, open government and secrecy, and other issues in northern Idaho and eastern Washington.

Location: Coeur d'Alene, Idaho, United States

Raised in Palouse, WA. Graduated from Washington State University. US Army (Counterintelligence). US Secret Service (Technical Security Division) in Fantasyland-on-the-Potomac and Los Angeles. Now living in north Idaho.

Monday, July 04, 2005

The Sanctity of the Seal

On July 2, 2005, The Spokesman-Review published an article headlined E-mails open records, judge says. Staff writer James Hagengruber reported that Idaho District Judge John Stegner had ruled the 889 e-mail messages exchanged between Kootenai County Prosecuting Attorney Bill Douglas and Maria Kalani, a former Juvenile Education and Training (JET) Court coordinator, were open records and not protected by privacy laws.

Judge Stegner's ruling will be appealed to the Idaho Supreme Court, but the ruling was both logical and reasonable under current case law. As the judge observed and Hagengruber reported concisely, the e-mails were written on county property and contained information about the conduct of public business. He determined that the Douglas - Kalani e-mails were not personnel information but information about the conduct of public business. Without ruling that an inappropriate relationship existed between Douglas and Kalani, Stegner astutely noted that if such a relationship existed, its very existence would rightly be public business because the supervisor (Douglas) evaluates the subordinate (Kalani), and "...the public is entitled to know if there is something more than an employer/employee relationship which could cloud the supervisor's judgment."

In explaining why he felt the e-mail message should be kept from the public, Hagengruber quoted Prosecutor Bill Douglas saying, "It's about privacy rights in cyberspace and the definitions of what is public records with regard to the Internet." Douglas raised a fair point about privacy rights in cyberspace but not about the Internet having some bearing on whether information on the Internet is public record or not. It is its origin and content, not the medium chosen to exchange it, that determines whether or not information is public record.

As to privacy rights, I wonder if Douglas and Kalani might make a defensible and reasonable comparison between e-mail messages and first-class letters sent through the US Postal Service.

Employees of the US Postal Service are required by law to protect the "sanctity of the seal" on a first-class letter. A postal patron mailing a first class letter is entitled to expect that except when authorized by a court order or search warrant, his letter will not be opened and read or its content disclosed by anyone in the US Postal Service. That the services, facilities, and equipment of the Postal Service are used to facilitate the first-class letter's exchange does not automatically entitle Postal Service handlers to open and read the letter's content. Indeed, the US Postal Inspection Service was created to provide assurance to postal customers of the "sanctity of the seal" in transmitting correspondence and messages. That wording, taken from the US Postal Inspection Service's own website, is important, because even now the US Postal Service is blurring the distinction between US mail and e-mail by marketing the use of e-mail to enhance traditional mailings.

Maybe someday, no doubt long after the US Postal Service has gone bankrupt and first-class mail has been replaced by e-mail, Congress will accord e-mail the same protection that resulted when the Second Continental Congress created the Postmaster General position in 1775. That event showed Congress's recognition of the importance of the government facilitating and securing interpersonal non-verbal communications. Its intent has been affirmed to this date and evidenced by continued Congressional funding of the Postal Inspection Service without any change in its mission to protect "the sanctity of the seal."


Anonymous tsykoduk said...

There is no seal on most email however. It is not like a letter in an envlope, sent with an expectation of privacy. It it sent in clear text, like a post card.

There are technical options (signing, encryption etc) that can give a person an expectation of privacy. I do not know if the email in the case noted used such tools, but with out those tools, there should not be an expectation of privacy in any email transaction.

10:52 AM, July 08, 2005  

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