On July 27, the US Office of Special Counsel published a document with Frequently Asked Questions Regarding Social Media and the Hatch Act. The Hatch Act of 1939 is a US federal law preventing federal employees from engaging in partisan political activities.
The FAQ looks at how to comply with the act when engaging on social media, with particular reference, but not limited, to Facebook and Twitter.
The basic advice is that if a federal employee accesses social media from a federal workplace and during working hours, while on duty, then the provisions of the act would apply. Although there are several such references, I am picking one that I find particularly interesting
… federal employees must not post comments or opinions on Facebook that advocate for or against a political party, partisan political group, or candidate for partisan public office, while they are on duty or in the federal workplace. They may, however, do so after duty hours and in another location
This statement beautifully illustrates one of the ironies of social media. How would a reader know where the federal employee was, and at what time of the day that employee posted, and why should he or she even care? Does the physical location and the fact of being on duty make any real difference on how people may perceive an employee to be breaching the act?
Place and time are irrelevant on social media. The fact that a comment carries a time tag showing that the employee was off duty could satisfy the legal requirement (maybe), but won’t change the impression that the employee has indeed engaged, in his or her professional capacity, in partisan political activity.
The blurring of personal and professional roles and profiles on social media is unavoidable. Creating artificial boundaries, like this FAQ and many other social media policy documents try to do, will not stand the test of time. Policies and strategies should start from the recognition that there are no boundaries any more.
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The OSC memo doesn’t mean that government as a whole
doesn’t get social media.” Have you followed NASA recently?
It just shows that the lawyers there haven’t quite caught up to the always-on, mobile workforce. After my discussions with people in government, I’ve taken away a sense that many of the government employees themselves are quite aware of those risks and are being careful. Some will make mistakes. Some already have.
Other people have expressed frustration with this update of an old law (1935) for the social networking age. As I’ve read through the coverage, the extension on restrictions for government employees on the job didn’t strike me as unreasonable, at least with respect to previous technology. Would a government employee use a work email account to send out political messages? Or would she make calls in support of a party? Or post banners for a political party or rally on the office bulletin board? Would he loudly exclaim in a meeting in excitement that a favored candidate won a primary?
To your last point, the first part of your analysis is sound, in recognizing the permanent blurring of the boundaries between work and play, particularly for elected officials, high profile private sector officials and (of course) entertainment figures stalked by the tabloids.
On the latter count, however, the recent Supreme Court decision regarding electronic privacy over government-issued communications gear (the infamous ‘sexting’ case) re-affirmed that it does indeed matter where an update, txt or email is sent from. Any major enterprise can and does place expectations for behavior for the use of its IT equipment in the workplace, or off, particularly with respect to pornography, streaming video, P2P applications or, as you know, social media. Many CIOs choose to block public access to such platforms, for a variety of reasons. That’s changing slowly, not least because of smartphone access, but also because many compliance shops are shifting to risk management as opposed to risk avoidance.
I must, however, be blunt in my disagreement with your statement that “time and place are irrelevant on social media.” Have you been watching the growth of geolocation and location-based social networking, like Foursquare, Gowalla and now Facebook Places?
Those services are ALL about time and place. Twitter too, in large part, in terms of its real-time ebb and flow around events, particularly disasters or breaking news.
Even a layman, without the toolset of a digital forensics team to track down IP addresses, could see where a federal employee might be if geolocation is turned on.
You’re quite right that a tweet, update, like or link shared on a government employee’ social media about a partisan topic would be an issue, regardless of where ever and whenever it was made. As we feel our way through the meaning of the hypercharged media environment of the moment, that’s a good lesson to take away.
But there’s an issue there, and pointing to the inadequacies of existing conceptions does not get us very far.
As you know, the Govt 2 Taskforce in Australia argued that public servants should be much more active on Web 2.0 expressing professional views. I think that’s an area where there can be quite a lot of (very productive) development and change.
But I’m less optimistic about the disjunction between accepting political partisanship in a private capacity whilst proscribing it in an official capacity. That arrangement is already a somewhat uneasy one as Alex’s comment above illustrates, but I can’t see any particularly sensible or productive ways to make it any less uneasy. The immediacy of Web 2.0 just makes it trickier.
It’s all very well to say that governments don’t ‘get’ Web 2.0. That is (often) true enough. But it’s also important for Web 2.0 people to ‘get’ government.
Any suggestions as to how to take this forward?
More hard signal of the hard decline of the U.S. into meaningless bureaucracy.
MANAGEMENT and clear goals and expectations are the answer to this. It’s like the ridiculous scene when government aides are standing right in front of their legislative buildings for their political phone calls. ‘It’s break time, it’s lunch time.’
All this reg clarifies is how investigations of targeted employees will proceed.
What if a government employee or contractor is working from home. What if their working hours are self-defined (8am to 10am and then 4pm to 11pm)? What if they are working from a hotel room in a different timezone? What if they’re using their own equipment and wi-fi from a government office (though still using a publicly owned chair, desk and electric lighting)?
What are the boundaries of ‘work’ anyway?
There’s too much grey around location and time – and even around which public assets can be used for ‘personal’ use – let alone around activities which are not considered ‘work’ but make an individual more effective at work for these types of black and white 1935 rules to still be effective.
However lawyers are contracted to write in black and white, then make their living from the gray areas – so I don’t see any clear resolutions in this space at any point in the future.
I think, to some extent, policies like that exist to protect the government in the event that comments are tracked back to government computers and by extension government agendas.
One example recently in Canada was the Department of Defence computers being used to make edits to a Wikipedia page about the largest purchase in the department’s history ($18 billion strike fighter jets). The wikipedia edits made by someone using Department of Defence computers removed all criticism of the purchase and even added that the opposition leader was supportive of the purchase, when he has been critical of it.
More on that issue here: http://www.cbc.ca/canada/story/2010/07/29/wikipedia-dnd.html
If someone was making those edits from home, a hotel room, their own wifi equipment, etc. it would still not be a good move, but it wouldn’t be easily trackable back to the government department in question.
As a blogger, if someone leaves a comment on my blog that looks like it could have an agenda behind it, I most certainly look up the IP address to see where it came from. I have had plenty of instances of people pretending to be just an ordinary citizen with an opinion, when in fact they were sitting at the computer of an organization I was critiquing.