CORA them all, we say!

by Eileen | 4:43 pm, January 10, 2013 | Comments Off

We are officially in session.  Among other things already handed out at the Capitol were 100 tablet computers – one to a legislator.  As a paper saving move, well done and not a moment too soon.  Let’s hope it actually saves paper.  Maybe some bright young intern can uninstall all the printers.

On a side note, let’s all say a prayer for the godforsaken soul tasked with providing tech support to our illustrious givers of law.  Better yet, let’s start crowdfunding a bar tab for her…someplace nice.

The possibilities for conducting private lives on public devices remains unchanged.  People have been attending to personal affairs on work time since the concept of the ‘job’ was introduced.  Frankly, when your company buys you a device, it’s often nicer than the one you have…and that’s how people end up soaking the taxpayers for $6,000 laptops only to spend all day playing Solitaire.  Now, one supposes, our lawmakers will simply have a little more mobility to do whatever exactly it is they do.

What is a new possibility now that we’ve introduced these portable and potent toys is the sheer volume of CORA data we could get.  No doubt, many, or most, members will conduct matters that aren’t purely legislative on these devices.  A stated, and a proper, reason we give legislators such tools is to allow them to research issues, follow news, and respond quickly to constituents.  We the people have every right to know when an elected official is frittering away entire days on decidedly inappropriate websites, taking days to answer questions from voters, and having conversations that an unbiased public servant ought not have.

And we could have a field day by open-recording every last one of them.  Which would likely result in some horrifying discovery…like members desperately searching for an explanation of the most basic terms in a bill two minutes before the floor vote.  Bagehot lamented “letting daylight in upon the magic” and he’s right…about things that are magical, a category that most emphatically excludes legislative activity.

Political behavior ought to exist in permanent sunlight…like the Arctic Circle and Gitmo detainees being put through sleep deprivation.  A fine statement that, but not a legally binding one.  For one thing, Gitmo is itself not the most legally upright of institutions.  For another, even politicians are humans and merit some privacy.  They’ve also, however, have chosen to enter public life and ought to expect no quarter on hiding what they do on public time and the public dime.

If anything, they ought to hew to a higher standard.  Although, that may be indulging in a fantasy.  They should behave as exemplars to the rest of us, but they don’t.  The only way they will behave better is if we demand it of them, which we don’t and likely won’t.  The innate nature of the system rewards people willing to do the most for the sake of power.  In American politics, the good self-select themselves out of the pool early on.  If you’ve got a soul, you will lose to someone who wants the prize badly enough to do something you just won’t consider.  Having won, that behavior continues in office.

This brings me back to open records and transparency applied to legislators’ electronic devices.  I will stipulate right now that I think publishing the more-or-less unredacted contents of each legislator’s state-funded device throughout the session isn’t a half-bad idea.  I absolutely hold that public officials ought to expect less privacy in their work than employers of private companies.  When you’re spending my money and making rules that bind me, you have very little expectation of avoiding my scrutiny.

Legislators have families and, given what the state pays per session, either need to hold a regular job or be independently wealthy.  I like the idea of citizen legislators.  The Platonic ideal of barely-human elites who govern at a total remove from the everyday life of those affected by their rules is a guaranteed recipe for despotism.  So long as our legislators have fragile investments in the community – families and careers – they have an incentive to govern a little better.  I am aware this can run the other way; taking care of your own with other peoples’ money is a powerful invitation to corruption.  But, we can’t root out the tendency to do bad by taking away the incentive to do good.  Here, there are no solutions, only tradeoffs.

Alright then, should we CORA the entire legislature’s tablet records and what might we expect?  To answer the first question in a word, yes.  We are perfectly in the right to expect our that legislators handle personal matters on their own damn smartphones.  They may not be swimming in cash but they can afford a data plan.  They’re also smart enough to know better.  Even if they aren’t, leadership in both parties has no doubt already held the requisite mandatory powwow on what is and is not allowed on ‘the peoples’ tablets’.  Honestly, anyone buffoonish enough to misbehave on a CORA-accessible device deserves public derision.

Ah, but are they really subject to CORA?  That’s the other question.  I’ll bet good money right now that, should anyone file a CORA request on some legislator’s tablet, the first objection to be thrown up will be ‘work product.’  Rightly or wrongly, the one holds up pretty well.  It’s obviously used to hide things that are of legitimate public interest, but I doubt the introduction of tablets to the legislature will trigger a serious re-examination of the work product exemption.

Be that as it may, if anyone does succeed in exposing a legislators’ entire online behavior for the course of the regular session to cold and unforgiving daylight, there are certain politicians who might develop an overdue interest in electronic privacy.  I once saw a guy – not elected but a high ranking staffer at a public agency – suddenly learn what all the privacy advocates were yelping about when he tried and failed to cherrypick which of his ‘work’ emails he could refuse to turn over in response to an open-records request.  The massive numbers of messages he exchanged with his wife every day didn’t ultimately make it into the answer, but all his co-workers got to find out just how much of his work day he misused every day by drafting personal messages and just how nauseatingly ‘cute’ he was.

There’s no shame in being deeply in love with someone and in exulting in a new marriage.  But he showed himself to have terrible judgment and to be spending large chunks of his work day exchanging love letters, often when he told co-workers he was too busy to do anything for them and begged off of deadlines, citing his workload.  Which is shameful.  Wrongly prying into private areas in an attempt to control or embarrass someone is loathsome.  Not considering ahead of time how to safeguard your own privacy is folly.  That man’s co-workers didn’t have a right to know his his marriage was going, but they had a right to know that his behavior was wrongly transferring his workload to them.  His own poor judgment is the reason the two got mixed up.  We must all, always, be our own first and greatest champions of our privacy.  This does not involve doing as we like and expecting everyone else to bend after the fact.  It calls for us to think and behave wisely from the outset.

We do, sadly, live in a society where the state’s surveillance of us is so pervasive that protecting our privacy demands massive, and every-growing, amounts of time, know-how, and inconvenience.  In this instance, though, not spending a quarter to a third of your day cooing at your bride is a simple and legitimate expectation.  Our legislators are in the same boat. We’d like them to work and we know better then to think they will without us watching.

Not all things we might want to keep private are shameful.  Privacy isn’t about shame; it’s about autonomy, dignity, and the cherishing the space needed to develop self-knowledge and real intimacy.  Most of the time, those who attempt to trigger shame in us by pressing for access to our inner lives and announcing we must ‘be ashamed of something’ is we resist are only manipulating us for their own ends.  But in the case of citizens wanting to know what their public servants are up to, the tacit threat of the shame a lawmaker may expect if he misuses public tools and is caught out is, I think, rather a useful thing.

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