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Mixing business with pleasure

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The Karl Rove issue

Applying these principles to the situation with respect to White House "political" employees like Karl Rove results in less clarity rather than more. As a general rule, the United States Government in general, and the White House in particular, are required to retain certain kinds of documents and records.

This requirement arose out of litigation which had its roots in another White House scandal - this one the Iran-Contra affair, where White House employees John Poindexter and Oliver North deleted PROFS notes - electronic communications related to the scandal.

In a case called Armstrong v Bush the court enjoined the government from deleting these records, holding for the first time that some electronic communications were official records, which were required to be kept and made available under the freedom of information act.

Other laws, like the Presidential Records Act require that the White House:

Take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law.

The Federal Records Act similarly requires preservation of

All books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.

OK, so the government has to preserve and possibly produce government records - including electronic records. But were these records "made or received...in connection with the transaction of public business?"

There is a federal law called the Hatch Act which essentially prohibits partisan political activity on government property. In general, this would keep a government supervisor from saying "vote Republican or be fired" or even from things like running for political office, soliciting campaign contributions, or even possibly displaying partisan political literature in a government office.

While the law does not explicitly prevent the use of government resources in furtherance of political activity, it does generally prohibit employees from engaging in "political activity" while on duty or in a government office.

The Hatch Act was amended in 1993 to give federal employees more freedom to engage in political activities on their own time. Under the 1993 amendments, Section 7324 of the Hatch Act provides that officeholders "paid from an appropriation for the Executive Office of the President" may engage in "political activity while on duty".

In other words, if the RNC paid for the email, and possibly for the computer time and employee time, and maybe even a portion of the office expenses related to Rove's activity, then it doesn't violate the Hatch Act for certain employees like Karl Rove to engage in such activity. Note that there is nothing in this amendment that mandates the use of a separate email system, nor anything that prohibits it.

The result of these laws is a mess. The emails may or may not be in the "possession, custody and control" of the White House. Copies may be on the laptops or desktops of White House employees - including Mr. Rove. If the communications traveled through the White House system (via Outlook, webmail, POP or IMAP) then all or parts of them may be physically present on backup tapes of the White House. Another question is who "owns" the blackberry, PDA and/or cell phone through which these communications may have been transmitted? Where is the blackberry server?

These problems are not unique to the White House and RNC, or the government in general. When we mix business and pleasure, we are bound to create such problems - no clear lines of demarcation. Where do official government communications end and political communications begin? Which of your employees' activities are "official" and which are "private?"

Many of these problems can be ameliorated by having clearly written, well-though out and enforced policies on privacy and use of systems. Oh, and the time to write these policies is not after you receive a subpoena.

This article originally appeared in Security Focus.

Copyright © 2007, SecurityFocus

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