Friday, 09.19.08

They've Got Mail

AFP/Getty Images

Hackers broke into Sarah Palin's Yahoo email account.

The fact that hackers broke into Sarah Palin's Yahoo email account is, as the McCain campaign says, "a shocking invasion of privacy and a violation of the law." But that sentiment is crocodile tears for a big chunk of the Right (when was the last time it complained about an insufficiently robust commitment to privacy law?), and it's also a distraction. The hacking incident should not draw attention away from the following: Sarah Palin has used her private email account to conduct state business, and she was doing so to circumvent the state's public records law and avoid public scrutiny.

This is a statement of fact, and it has been reported as fact casually and frequently in numerous places well before Palin's account was broken into. It does not and did not depend on whether or not Gawker had the screenshots in hand. On September 10 the Washington Post reported that Palin "routinely does government business from a Yahoo address." Last Sunday's New York Times reported that "The Governor and her top officials sometimes use personal email accounts for state business," and that "dozens of e-mail messages obtained by The New York Times show that her staff members studied whether that could allow them to circumvent subpoenas seeking public records." Both the Post and the Times made reference to this exchange:

On Feb. 7, Frank Bailey, a high-level aide, wrote to Ms. Palin's state e-mail address to discuss appointments. Another aide fired back: "Frank, this is not the governor's personal account."

Mr. Bailey responded: "Whoops~!"

This deserves a "Whoops~!" I presume, because the statutes and regulations governing public records are well known and readily available. Specifically, there is Alaska's Title 40, which provides, among other things, that "The chief executive officer of each state agency shall make and preserve public records containing adequate and proper documentation of the organization" (Chapter 21, Section 60), and that, "Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours" (Chapter 25, Section 110).

Using private email addresses is an attempt to duck around this law, though I'm not sure it will work. This afternoon I called Dean Dawson, the Alaska State Records Manager, to find out if Palin's Yahoo emails fall under the statute. He said: "They are governed by the statute, if the emails are state-government related and if they constitute record material under 40.21." And since Title 40 also says that a state official who "denies, obstructs, or attempts to obstruct" the public records process "may be enjoined by the superior court" from doing so, maybe someone will sue.

I'm not a lawyer, so I'll have to be content with pointing out all the wonderful hypocrisy here. Last week, when ABC's Charlie Gibson asked Palin about various earmarks Alaska has requested -- including "$3.2 million for researching the genetics of harbor seals" -- Palin conceded the point but argued that her desire to have those earmarks "in the light of day" was nonetheless important. It was dealmaking that went on "under the public radar" that Palin swore to stop. McCain, likewise, has spent years preaching the gospel of government transparency.

Well, it's hard to think of anything less transparent than conducting state business with the obvious intention of avoiding laws designed to promote state transparency. And in that context it's slightly unctuous to complain about privacy, when the vast majority of privacy laws are designed to protect the people against state coercion. (Think Fourth Amendment rights.) Palin's Alaska seems designed to do the opposite: protect the state against the coercion of the people, otherwise known as democracy.

— Conor Clarke

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