Tuesday, June 30, 2015

L.A. Mayor's Office Shares Their Twitter Block List

I came across this Tweet posted back in 2011 and it got my attention because it indicated that other people than just myself have been thinking about the issue of open records and social media for a long time.  This Twitter user obviously gets it!  When public officials use their social media account to discuss their position/job/public business/etc. then that electronic data becomes part of the public record!  It really is that easy!

Like it or not, people are getting blocked by the Twitter accounts run by a wide variety of public officials and agencies for a wide variety reasons.  I've found users who admit to posting obnoxious Tweets with an understanding of why they've been blocked, but I also have found many more people who claim they have no idea why they've been blocked or feel that their activity should have in no way earned them the distinction of being blocked.

Let's take a look at a response to a public records request I sent to the L.A. Mayor's Office.  As you can see, the current Mayor Eric Garcetti blames the previous administration, run by Mayor Antonio Villaraigosa, for all of the Twitter account blocking activity.

*By the way, you can submit your own public records request to public agencies that you find on Twitter!

We may not ever know exactly why the Twitter accounts of @JeffPussy,  @pucicemaxyp,  @CurlyGirlsRock,  @rhi_taggart,  @mkbinla,  @movieguns,  @tomroberts,  @wantedcalgov1,  @MooProducts,  @tvincome,  @merijoe5139, or @LeeVandenBrink were blocked to begin with.  That's because these people had their 5th Amendment due process rights violated.  The previous Mayor or the staff running the Twitter account had their own arbitrary reasons to block these 12 users.  There are no rules governing how one gets blocked or how one gets unblocked.  Your liberty to read public records can arbitrarily be taken away by sending a Tweet to the @LAMayorsOffice on a responding staffer's bad hair day and you'll forever be denied access to a public Twitter account.

Interestingly, these 12 users did not send any offensive Tweets to the @LAMayorsOffice during the current Mayor's term (they couldn't, they've been blocked).  So, why doesn't Mayor @EricGarcetti unblock these people?  The @MooProducts account has gone unused since 2012 and the Mayor finds it necessary to keep this account blocked?  At what point do these people get to see the Tweets posted by the publicly funded @LAMayorsOffice Twitter account?  And why does the Mayor think it is acceptable to link his personal Twitter account, @EricGarcetti, to the public @LAMayorsOffice account?  Does he find it acceptable to gain personal benefit from his public position?  That's a lot of potential followers and other related Twitter activity he sends to himself.

Again, I don't know what any of these blocked users posted to "deserve" to be blocked, but I know I was blocked by Atlanta Mayor @KasimReed for simply posting a Tweet to him in which I informed him of the Constitutional violations at play when an elected official engages in Twitter blocking (see article Atlanta Mayor Kasim Reed is blocking constituents and journalists on Twitter by Sean Breslin.)

However, not only is due process an issue, but so is your First Amendment right to redress your government for grievances and free speech, but also your Fourteenth Amendment right to equal protection.  Twitter fails to make users distinguish between the creation of public versus private versus campaign account and so the end result is a public official signs on to Twitter and feels entitled to use one account for a whole host of purposes.

We can't allow for our Constitution to become meaningless for those to whom it applies and we can't complacently allow our public officials and agencies to block voices of dissent from viewing or responding to their publicly posted Tweets. 

Monday, June 29, 2015

Help! I'm Attorney General and I Don't Know If my Twitter Account is Public or Private

California Attorney General Kamala Harris needs a lesson in ethical uses of social media for public officials.  She shouldn't be embarrassed, as many public officials are making the same mistake.

Here is a look at the two main accounts you will find associated with Kamala Harris on Twitter:
@KamalaHarris (her private account, has over 39,600 followers)
@CalAGHarris (her public account, has about 5,000 followers)
Note: she has a few other useless ones.

Earlier this month I received a response (see below) to my public records request on the Twitter accounts of Kamala Harris and those of her staff.  I wanted to know how many Twitter users the following accounts were blocking and/or muting (by the way you can submit a request, too):
@KamalaHarris (when I submitted my request I did not know this was a private account, as Ms. Harris does indeed post Tweets to it that are clearly related to her job)
@VenusD_Johnson (a staff member who uses Twitter to post comments related to her public position, the state claims this is a personal account and not subject to open records laws)
@CaAG_HG (account deactivated soon after I submitted my public records request)
@jehabig (a staff member who uses Twitter to post comments related to her public position, the state claims this is a personal account and not subject to open records laws)

 FYI: I edited out my home address.

I included the Twitter accounts of the two staff, Venus Johnson and Jill Habig, because they are both using their position for personal gain by publishing their job information directly to their Twitter profile.  Guess what happens if you associate yourself as working in the state Attorney General's office?  You'll benefit by getting more Twitter activity!  After my request was submitted I did find more staff members that should have been included.

So let's say you are trying to contact Kamala Harris in relation to public business.  You can Google her name and the result looks like this:

See the nice "FeedBack" screen on the right?  See the links to FaceBook, Twitter, and Instagram?  Yes, those social media links all direct you to her respective private accounts.  So, if you want to contact her for public reasons I don't suggest going this route.  Even the first website link takes you to her private website.

Just trying to find her public account on Twitter can look overwhelming and, of course, the first result is her private account:

Why does transparency matter?  Let's look at who publishes Kamala Harris's private Twitter account when maybe it's better they stick to publishing her public one:
-News Organizations
https://www.irvine.org/blog/irvine-leadership-award-recipients-are-all-the-buzz I guess the 2014 James Irvine Foundation Leadership Awards and the comment Kamala Harris left had absolutely NOTHING to do with her position as Attorney General and, therefore, it was completely ethical for her to use her private account to submit the comment.
-Some sort of unidentified website that wrote an article promoting Kamala Harris in her position as CA Attorney General, but in which she allowed the publication of her private Twitter account

As Attorney General, Ms. Harris is expected to use her position in a way that does not allow for the private benefit of any sort of personal gain see CA Gov Code 19990-19990.5.  I'd say she and her staff gain plenty by entitling themselves to discuss public business on private Twitter accounts.  Also, when it starts getting reported on various websites and publications that I can contact a public official at a certain Twitter handle I begin to believe I'm being directed to their public account.  However, should I make a comment on Ms. Harris's private account that she doesn't approve of she can block me from further viewing or responding to her Tweets.

However, if Ms. Harris is going to post Tweets on her private account that should otherwise be published to her public one, then her private account becomes subject to the Public Records Act.  Public officials can't have it both ways.  They can't privately Tweet information that should be open and available to the public.

If I am going to pick up a copy of the Spring 2015 CalAppNews newsletter in which they want to suggest to me that I follow on Twitter the state's Attorney General, then I want to know that I'm being driven to her public account and not her private one.  I do not want to be directed to an account that allows her the privilege of blocking or muting me.  Thankfully, as you can read in the response to my public records request that, at the very least, the public@CalAGHarris account does not currently block or mute anyone.

Now, if I can get Governor Jerry Brown to respond to his public records request.

How Social Media Use Can Violate Post-Employment Restrictions for Members of the US Senate

In March of this year the U.S. Senate Select Committee on Ethics published  AN OVERVIEW OF THE SENATE CODE OF CONDUCT AND RELATED LAWS.

On page 12 there is a discussion regarding the types of post-employment restrictions that former Members of the U.S. Senate face.  Interestingly, former Members are to refrain from communicating with current Senate Members, officers, or employees of either the Senate or the House, or employees with any other legislative office of Congress "with the intent to influence official action on behalf of anyone else for two years after leaving office."

Well, I don't know who all the former Members of the U.S. Senate are, but that's what the Wikipedia List of Living Former US Senators is for.  As you may have already guessed, I've looked at some of the most recent former Senate Member's Twitter pages.

I've noticed that a few Twitter pages have been left to die after the Member's campaign loss or retirement and other accounts continue to get used.  That "continued use" part is what interests me.  It turns out that, yes, "continued use" can mean just what the Senate's post-employment restrictions were meant to protect against.

So far I've found one former U.S. Senator, Jim DeMint, that I noticed was disregarding the "do not contact" rule.  Senator DeMint was in office from 1/3/05-1/1/13.  That means if between 1/1/13-1/1/15 he has used social media to post anything on behalf of anyone else in order to influence official action and it is addressed to a current Senate Member, officer, etc. then DeMint is in violation of the Senate post-employment restrictions.

You can visit him on Twitter at @JimDeMint and see for yourself, but here are some highlights with links included:

Now, go back to the legal jargon above and ask yourself, "Were DeMint's Tweets posted on behalf of anyone else?"  Did you notice that the "@JimDeMint" account links to the "@Heritage" account?  That's because nowadays DeMint is the President of and posts Tweets on behalf of the The Heritage Foundation.  In these posts you can also see that DeMint likes to provide a links to the Heritage Foundation.

Did you notice anything else about the @JimDeMint Twitter account?  Maybe like the fact it was created in 2007.  Yes, this is the same account he used in his official position as a U.S. Senator.  He didn't deactivate his PUBLIC Senator account to start a PRIVATE one.  No, he took all those followers and Tweet activity with him on to his new job in the private sphere.  His Tweets go back to 2010.  Let's take a peek:

These are just a few, but I use them because they illustrate my point that Jim DeMint was indeed using his Twitter account, @JimDeMint, to communicate with the public about his job during this time he was serving as a U.S. Senator.  However, without much thought he took a public record (his entire Senator Twitter account) with him after he left office and continued to use and alter it.  I doubt the Senate Ethics Committee will do anything in regards to Mr. DeMint, but hopefully they will keep other Members of the U.S. Senate from doing the same thing once they leave office.

Did he take all the correspondence he wrote as Senator with him out the door to?  Did he get to continue to use his Senate email account once he left?  Why would his Senate Twitter account be any different?

Saturday, June 27, 2015

Rand Paul Just Stole Public Records and Wants Your Vote

There at one time was an "@SenRandPaul" Twitter account.  It's not called that anymore because in April of this year when U.S. Senator Rand Paul announced he would run for President he renamed his account to @RandPaul.  

Senator Paul created the account in 2010, but don't be mislead into thinking he's been campaigning for President all that time.  No, Senator Paul was using the previously named @SenRandPaul account as a way to communicate with the general public about the work he did as Senator.  You can even find the account published on this government website: http://www.src.senate.gov/files/NewMediaAddressSheet.pdf.   If you're inclined you can scroll back through time on Paul's Twitter feed prior to when he announced his candidacy and see the Tweets he posted in relation to his position as Senator.

It is very clear that the @SenRandPaul Twitter account was public and it still should be, regardless of the fact that Senator Paul renamed it and is using it as a campaign account.  By taking personal control over an account that had public use Senator Paul is in violation of the same Federal Code I accused the President of violating in my previous blog post, see link https://www.law.cornell.edu/cfr/text/5/2635.702.  This is a link to Title 5 of the Code of Federal Regulations section 2635.702 regarding the use of public office for private gain.

However, Senator Rand also has to follow the U.S. Senate Select Committee on Ethics campaign activity guidelines.  I like the part that states, "The Committee has advised, however, that unsolicited contributions delivered or mailed to the Senate office should not be accepted if there is any indication of a connection between the contribution and official business."  Since Senator Paul utilized his once PUBLIC Twitter account to now using it as a tool to privately raise money, should he be able to keep any of it?  He didn't follow the proper "soliciting" protocol and maybe those funds should be returned.

This is the equivalent of Senator Rand Paul taking his public Senate email address, phone number, or website and using it as his official campaign purposes.  He can create public record, but he can't take personal control over the records he creates.

Interestingly, Senator Paul is not alone in his wrongdoings.  Let's take a look at who else is guilty of misusing Twitter for campaigning purposes.

  • Louisiana Governor Bobby Jindal:  The @BobbyJindal Twitter account is the only account associated to Gov. Jindal.  He uses it to post mainly Tweets related to his position as Governor, Tweets of personal nature, and most recently as a Presidential campaigning tool:

  • U.S. Senator Ted Cruz:  Senator Cruz has a public Twitter account and a private one that he is now using to campaign with.  But, yikes!  Look at this job-related Tweet I found posted to,@tedcruz, which is his private account:

  • U.S. Senator Marco Rubio:  Senator Rubio also has two Twitter accounts, @SenRubioPress is his public one, and @marcorubio is his private one.  However, Senator Rubio has misstated the purpose of his private account because he has it published publicly on official government sites:

This screen shot is an image of Rubio's official government website.  Under the heading Latest Updates you will see he is posting links to his private Twitter account.  Maybe he forgot that he can't use his public office for personal gain.

Also, on the following link you will find Rubio's private Twitter account published by the U.S. Government Printing Office in a contact directory for the 113th Congress: http://www.gpo.gov/fdsys/pkg/CDIR-2014-02-18/pdf/CDIR-2014-02-18-FL-S-1.pdf.  Would they have published his private mailing address?

  • Wisconsin Governor Scott Walker:  Gov. Walker lets his wife, Tonette, to post Tweets from his private account.  Well, Tweetn' Tonette tends to post things that regardless of who's initials follow the Tweet in question, the fact remains the same that it is still being posted on the @ScottWalker account and he is the only person who can speak for himself.  Yes, maybe a staff member can sign off on a Tweet, but when your spouse is otherwise saying something on your account that not even you can say, then that's a problem.  For example, below is a Tweet that Tonette posted.  We should look at this Tweet as one that Gov. Walker posted himself because it is on his account.  The problem is that he can't use his private account to discuss matters of public business.  This Tweet belongs on his public account, @GovWalker

Tonette Walker has graced us with hundreds of similar Tweets that can be found on Gov. Walker's private Twitter account.

  • New Jersey Governor Chris Christie:  Gov. Christie does well to have a public Twitter account, @GovChristie, and a private one, @ChrisChristie.  On his private account you will find posts related to his position as Governor.  He also has a penchant for Re-Tweeting to his private account Tweets posted to his public one.  
In the example below you will see a post to Gov. Christie's private Twitter account regarding a very public policy-related speech he recently delivered.  This same announcement did not appear on his public Twitter account.  This is what taking advantage of your public position for personal gain looks like.

Wednesday, June 24, 2015

Even the President of the United States gets it Wrong with Twitter

The @BarackObama Twitter account that is run by a group called the Organization for Action posted this Twitter yesterday:

The only problem is, well, our President is violating Federal Code by engaging in his use of this Twitter account.

First, it will help you understand the issue if you read this recent article published last month in The Washington Post, Barack Obama makes clear that he is not @BarackObama, by Philip Bump.   Mr. Bump points out some key facts, one of which is that after Obama's tenure as President is over he might just very possibly use the @BarackObama account again as a private/personal account.  Secondly, Obama, as the Twitter profile states, has posted Tweets to the @BarackObama account.

Now, let's take a look at what law(s) the President "may" be in violation of and you can decide for yourself.

see link https://www.law.cornell.edu/cfr/text/5/2635.702  This is a link to Title 5 of the Code of Federal Regulations section 2635.702 regarding the use of public office for private gain.

So, two things pop out at me.  One, according to 5 CFR section 2635.702 the President can not use his office for his own private gain.  Obama has been known to post Tweets to @BarackObama  (we know this because he signs them "-bo") and the @OFA account links to https://www.barackobama.com/ (see this nice official looking page linked to the account https://www.barackobama.com/president-obama/).  It could be argued that the @OFA is really a shadow account for the President's use.

So, private gain in this instance refers to the fact that the President is utilizing the @BarackObama Twitter account to promote his own agenda (he can and should do this from his public @POTUS account).  With the use of the @BarackObama Twitter handle the President now has over 60 million followers that he can keep once his term is complete (assuming his current followers are still following him after the completion of his term).  This is not the case with the @POTUS Twitter handle.  That will continue to be used by future Presidents.

The second thing I noticed wrong with the @BarackObama account was the recent promotional trip to Hawaii.  5 CFR section 2635.702 points out that the President shouldn't be using his position to endorse any product, service, or enterprise.  

I think it is best that President Obama distance himself from the @OFA's use of his Twitter handle "@BarackObama."   Does the President need more than one official government mailing address, email account, or Twitter account?

Wednesday, June 10, 2015

When Public Officials Tweet

Somehow the really smart people that we elect to represent us in our local, state, and federal government forget some basic concepts about open records once they decide to create a Twitter account.  There is this powerful belief among them that because they created a Twitter account that that account is now a personal one.  Sorry, but it's not that easy.

I'm a private individual and as a private person I can create a private Twitter account.  This private account would allow me the liberties of blocking idiots, gnomes, taxpayers, creeps, people with questionable political affiliations, and so on.  Public officials CAN create a private Twitter account, but it easily turns into a public account once they start making some very basic mistakes.  Here's a few:

1.  Listing your public job title in your Twitter profile heading.  If you are going to say "I'm the Mayor," well that makes it look like that if I want to contact that mayor then I've found the appropriate account.

2.  Posting Tweets related to the public work you were hired or elected to engage in.  If you are going to engage in an activity on the taxpayers time and the taxpayers dime then is that activity work related?  I don't vote for or pay taxes to public officials to "goof off" on their "personal" Twitter account.  Would you be pleased with the performance of your Mayor, Governor, or City Manager if you knew they were playing Angry Birds or posting to their "personal" social media page all day?

3.  Publishing your Twitter profile contact info to any government or non-government related website that relates to the business of your official position.  Once you decide to publish your Twitter contact info anywhere, again, it makes it look like that is an official way to reach you.

Keep in mind that a public official's personal Twitter account should not, NEVER, contain anything about their public position because then they would be using their position for personal gain.  As you can imagine, if I say on my Twitter profile that I'm an "Assistant Attorney General for the State of California," then I may potentially get more Twitter followers and other related activity on my account than if those words don't appear on my profile.


This is an easy question to answer.  Public official's shouldn't try to fool themselves into having safely created a private account, however, Twitter doesn't help the situation.  Twitter's biggest mistake is failing to make users distinguish between creating a personal vs. private account.  Therefor, public officials all go into it thinking that "Aw, I've got this neat private account that gives me the option of blocking idiots, gnomes, taxpayers, creeps, and people who wouldn't otherwise vote for me!  Blocked!"

So what's the easy answer?  As a public official you need to get used to facing scrutiny and criticism.  It comes with the job and you chose to accept it.

Would anyone find it acceptable for a public official to block a constituent from trying to email them?  Deerfield Mayor Jean Robb did and she had to have a staffer tell her this was illegal, but don't ask me how asking a staffer to do something illegal isn't an ethics violation.  

To put things into perspective, the First Amendment of the US Constitution gives you the right to redress your government for grievances.  There is nothing mentioned about how this can or should be done.  You can telephone, email, FaceBook, stone carve, carrier pigeon (if the public office you are contacting has a pigeon service), or Tweet your public official your grievance and as a public servant they are to accept it.  The US Supreme Court has ruled that no government entity has to respond to the grievance, see Minn. Bd. Commun. for Colleges v. Knight, 465 U.S. 271 (1984).

But really the issue is even bigger than our US Constitution.  The issue revolves around democracy.  Democracies are to be inclusive of all people regardless if they are idiots, gnomes, taxpayers, creeps, or people with questionable political affiliations.  Democracies are to be transparent and accountable to the people they serve.  How can a social media platform like Twitter be supportive of democratic principles when they make it so easy to exclude you?

Remember, wars have been fought in the name of spreading democracy.

Tuesday, June 2, 2015

Can a Business Twitter Block You Because of Critical Comments?

Last year in the sate of California a bill was passed (AB 2365) that says:

This bill would prohibit a contract or proposed contract for the sale or lease of consumer goods or services from including a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. The bill would make it unlawful to threaten or to seek to enforce, a provision made unlawful under the bill, or to otherwise penalize a consumer for making any statement protected under the bill.

This means that businesses in California can not force current or potential customers to agree not to post negative business reviews on social media websites (or anywhere a statement regarding the sellers services can be made).  Of course the customer must be making a truthful and honest statement or they could be subject to being sued by the business for libel, slander, or defamation.

This bill was popularly referred to as the "Yelp Bill" and provides for changes to CA Civil Code 1670.8.  This bill was passed to ensure that customers could be free to make reviews on platforms like Yelp regarding their purchase of a goods or service that are critical of the the business that provided the goods or service.  However, lets assume you are a customer making a comment critical of a seller's services on a platform like Twitter.  Well, CA Civil Code 1670.8 still applies.  What also applies is the CA Unruh Civil Rights Act and CA Civil Code 51.5.  One of the things all of these laws have in common is to guarantee customers do not get unfairly penalized for engaging in activities that are otherwise lawful.

Lets look at the biggest offender I've found on Twitter so far, SeaWorld of San Diego.  What makes them so bad?  If you've been keeping up with the news you will have noticed SeaWorld has gotten a lot of bad press lately:

SeaWorld Bitten By Own Twitter Campaign
SeaWorld Says Suing Investors Haven't Established 'Blackfish' Impact
What SeaWorld’s Sinking Stock Really Means

All this bad press that basically revolves around the issue of animal welfare has made SeaWorld look bad and certainly people will take their opinions to social media platforms like Yelp, FaceBook, or Twitter.  However, SeaWorld, and specifically SeaWorld San Diego, goes further and Twitter blocks those current and potential customers that make statements SeaWorld finds critical of their own animal welfare practices.

The CA Civil Rights Act covers political affiliation.  You can have your own "political opinions" regarding animal welfare, share those with SeaWorld of San Diego, and not have to be otherwise penalized for making a statement protected by AB 2365.

I would encourage anyone who feels like they have been unlawfully denied access to SeaWorld of San Diego's Twitter account, @ClydeSeaWorldSD, to file a public accommodation discrimination complaint with the California Department of Fair Employment and Housing immediately.