The emerging legal debate on government’s role in the Twitterverse has crash landed in San Mateo.
Litigation was filed against the city, its mayor and Police Department regarding how public officials and government agencies use social media.
The petition submitted in San Mateo County Superior Court Monday highlights a legal gray zone — what is the public entitled to when it comes to social media communications?
Patrick Whitnell, general counsel for the League of California Cities, noted the law hasn’t quite kept pace with the changing landscape of modern communication. Ultimately, there’s lingering debate on what information is considered public under existing rules. And Whitnell suspects further action — either behind the bench or in the Capitol — will follow.
“It’s an issue that’s been out there for quite a while, but this is the first lawsuit that I’m aware of that has addressed the use by cities and public officials of Twitter and the limitations Twitter has with respect to preserving records,” said Whitnell, who is not a party in the case. “This is a revolving area of the law and there’s a lot of open questions. So I think it’s going to be a process, certainly judicial, but maybe legislation as well to get some clarity.”
Sunnyvale resident Angela Greben filed the first in what could be several lawsuits asking a judge to weigh in on whether a government agency or elected official is using Twitter in accordance with existing laws. She cites the California Public Records Act, which outlines citizens’ rights to access information on government business; as well as First Amendment rights to petition the government for a redress of grievances, meaning complain or seek help without fear of reprisal.
Greben argues the city doesn’t have a sufficient social media policy to ensure adequate records of Twitter communications are kept, notes the San Mateo Police Department said its account was hacked in January and all direct messages erased, and points to Mayor David Lim using his account for both personal and official business.
Not just a San Mateo issue
But the issue stems far beyond San Mateo, but she said it just so happens this was an ideal opportunity to highlight the changing legal landscape.
“Pretty much every state has rules on the books against using your public office for private purposes,” Greben said, adding countless elected and public officials use Twitter to communicate with the public. “There’s just a fine line between public and private, public office and private lives.”
Her interest in the issue started while studying to become a paralegal when she learned she could make Public Records Act requests for information from public officials. What happened next further spurred her passion — she found her requests led to dozens of people blocking her on Twitter.
But it wasn’t until this year that she received some legal fodder for her argument.
Previously, PRA law only applied to communications made from official accounts, meaning a government official’s cellphone or private email address were typically off limits. But in March, the California Supreme Court ruled the public does have a right to review government officials’ emails and text messages pertaining to public business, even if they’re made from personal devices.
Whitnell, attorney for the League that works with California governments, said that Supreme Court case involving the city of San Jose provided some clarity. But it may have opened the door for new arguments as well, he said.
“It’s going to take, I think, either some legislative action to clarify the law or many years of litigation for the courts to interpret the Public Records Act, so that cities and public officials can understand what the rules are,” Whitnell said “Twitter and Facebook and the social media means of communication do raise a whole set of different issues than those raised by email and text messages.”
City’s reaction to requests
Lim and San Mateo City Attorney Shawn Mason said they would review the case and can’t comment directly on pending litigation. However, Mason noted the city’s 2014 social media policy is in accordance with existing regulations.
“We believe that our response to Ms. Greben’s records request and our policies about the use of social media comply with applicable law,” Mason said. “Having said that, we’ll do a careful review of her allegations and see if there’s anything we need to do to take other actions or modify our policy.”
The city’s guidelines don’t directly mention elected officials’ use of such sites.
But Greben argues elected officials often use Twitter in a manner that blends personal and governmental roles.
Nearly all of San Mateo County’s representatives in the Legislature and Congress maintain Twitter accounts, along with countless local city councilmembers, cities, transit agencies and others.
Following the San Jose case, Lim provided a partially redacted list of Twitter users he blocked, which included Greben. She acknowledged Lim is far from alone, she’s sent PRA requests to dozens of officials for their Twitter information, which has resulted in her being blocked or muted by many.
“It goes against open government and transparency, and my hope is if you’re in a public office and you’re going to be using your Twitter account to share public business, you need to keep it open, you need to keep it transparent,” she said.
But Greben’s assumptions raise a question that surely would have had the United States’ Founding Fathers scratching their heads — does the public have an inherent right to access social media?
Federal social media interpretation
The U.S. Supreme Court is in the process of ruling on a case that could help provide an answer. Justices are considering whether to overturn a North Carolina law that bans convicted sex offenders from Facebook, Twitter and other social media sites. A decision in that case is expected later in the year.
Greben said that case highlights the importance social media plays in people’s daily lives. When it comes to public officials, she contends the first step is for governments to craft explicit policies on what constitutes public versus private communications.
Another issue is retaining records, which is ultimately the responsibility of the government entity. She noted the city’s response to her PRA request included a brief explanation that San Mateo Police Department’s Twitter account was reportedly hacked and the direct messages deleted. If social media sites aren’t archiving public information, then it’s up to the government entity to do so, she said.
A Police Department spokesman said they could not comment on pending litigation and no further details on the hacking were immediately available.
Greben has others pinpointed in her scope, and noted she’s considering filing similar petitions against other California cities.
Governments and attorneys have been wrestling with these topics for more than five years but, with the rate at which technology is updated, Whitnell noted the law just hasn’t kept up.
“Social media policy has to be a living document and has to be reviewed periodically,” Whitnell said. “This is a revolving area of the law and there’s a lot of open questions. So I think it’s going to be a process, certainly judicial but maybe legislation as well, to get some clarity.”
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