The Ethics of Blogging as a Fed

[mirrored on Intelink-U]

[Update, 1 May 2014:  The issue of 1st amendment free-speech protection as a fed is more complicated than I knew at the time this post was written.  I've recently learned of the 2006 Supreme Court Decision, Garcetti v. Ceballos, which significantly restricts the protection for speech as a government employee.  I will probably write a new post once I've read the Court's opinions and understood the implications thereof.]

So.

I got in trouble for blogging.  Sorta.  And I got applauded too.  More on that later.

One of the posts on my blog got noticed.  People were offended that I would speak out of turn.  Apparently, a senior military officer printed a copy of the post and handed it to my boss’s boss’s boss, and recommended that I receive ethics counseling. I suspect that he has not read the Cluetrain Manifesto.

To the great credit of my leadership, they took this under advisement.  Some of them even read the blog.  One of the comments that got back to me was, “That was a well written post.”  My supervisor did call the Standards of Conduct Office, and he recommended that I go speak with an Ethics Official (an attorney), just so I would know what the boundaries were, and what I could (or could not) do.  I met with a very informed and articulate attorney and had a pleasant conversation with her.

Here is a synopsis of what I’ve learned about defense-civilian-blogger’s rights:  (side commentary in green)

  • I absolutely have a first-amendment right to free speech and my leadership was very respectful of that right. [UPDATE: The first-amendment protections apply to me as a citizen, but not to my speech as an employee, under Garcetti v. Caballos]
  • As a federal employee who is not an official spokesperson, I cannot speak in a public forum without a disclaimer that I speak for myself and not the government.  (JER 3-305.a, & 5 CFR § 3601.108 I knew this and had such a disclaimer already.  The attorney reviewed my disclaimer and found it adequate.
  • Use of the word ‘we’ to refer to the Defense Department or to government civilians could create the (mis-)impression that I was acting as a spokesperson, which is forbidden (see above).  I was strongly discouraged from using the word “we” in this way, especially considering that it is not necessary to do so to make my points.
    My inner lawyer wanted to argue this point, but it’s fundamentally reasonable.  (I subsequently edited my posts to avoid this practice.)
  • “DoD personnel, while acting in a private capacity and not in connection with their official duties, have the right to prepare information for public release through non-DoD fora or media. This information must be reviewed for clearance if it meets the criteria in DoDI 5230.29.” (DoDD 5230.09) “Writing that pertains to military matters, national security issues, or subjects of significant concern to DoD shall be reviewed for clearance by appropriate security and public affairs offices prior to publication.” (JER 3-305.b & DoDD 5230.09 para. 4.b, emphasis added)
    The dilemma with this restriction, of course, is that the definition of “military matters, national security issues, or subjects of significant concern” is subjective. I was given two pieces of advice:

    • Recommendation #1: In order to avoid the running afoul of this restriction, I could submit my blog posts to the Office of Security Review.
      Years ago, I authored a briefing and submitted it to the OSR, and it came back to me, as a subject matter expert, to review and approve. Ever since, I’ve been disinclined to waste the time and resources of the OSR.  (Waste is officially frowned upon, BTW.)
    • Recommendation #2: I could submit posts to my supervisor to review, prior to publication.
      This is similarly unsatisfying, in my humble opinion.  To the extent that anything I might post is controversial (but protected) speech, the consequences are risks that I must be willing to accept.  It is unfair, and perhaps even cowardly, to shift this risk to my supervisor, who as a federal civilian, is naturally risk averse. (q.v. previous post on Risk Aversion)
  • An employee shall not use his official title or position to identify himself in connection with his writing, except that he may include his title or position as one of several biographical details, provided that his title or position is given no more prominence than other details. (5 CFR § 2635.807)
  • “An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.”  (5 CFR § 2635.703, emphasis added)
    “Non-public information” is defined as, “information that the employee gains by reason of Federal employment and that he knows or reasonably should know has not been made available to the general public.” (5 CFR § 2635.703)
    This point I found very interesting.  Several government employees that I spoke with believed that it was inappropriate or impermissible to disclose any nonpublic information gained as a result of public employment, for any reason.  The actual guidelines do not say that, and to do so would run contrary to the many whistleblower-protection laws that exist.  The statute does say that it is unethical use non-public information to “further his own private interest or that of another“.  On the contrary, using non-public information (i.e. my personal experiences in gov’t service) to illustrate a principle about efficiency of government activities, is precisely not to further my own private interest, but rather to further a public interest.
    In short, “insider trading” is forbidden;  “inside baseball” is not.  (Unless it’s classified or otherwise controlled information.)

That was my official “ethics counseling” on blogging as a federal civilian.  There was one additional issue, concerning cross-posting to Intelink-U.  Separately,  I asked this question to a colleague on Intelink staff, who passed it on to local counsel.  Here is an excerpt from the response, which is too precious not to share:

Having read the blog, I have couple of observations on the blog and its content–

  • I see nothing in the content that violates the Intelink Terms of Use
  • A blog, by definition, is personal commentary on a relevant topic.
  • I see nothing in the content that conflicts with the Federal employee ethics regulations codified in 5 C.F.R. Part 2635: Standards of ethical conduct for employees of the executive branch.

Based on a close read of Mr. Risacher comments, it could be reasonably argued that his commentary directly relates to his ethical obligations under 5 CFR Part 2635.101 (b) (11), “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities. Albeit, it is not “politically correct/wise” to use a public forum as the method of “disclosure.”

His use of a “real” example to make his points about the well known disconnects between many “program management” and “operations” activities. Without such a concrete example, however, his commentary would have been vague and hypothetical, and dismissed as such.

And, oh by the way, while he is not a DNI employee one of the core values and performance measure is Courage…”moral, intellectual, even physical. We have the integrity (indeed, the duty) to seek and speak the truth, to innovate, to change things for the better, regardless of personal or professional risk.” In fact, a key assessment criteria for all DNI employees under the Personal Leadership and Integrity section is “a commitment to excellence, and the courage and conviction to express their professional views”
There are a few relevant questions one should consider:

Is is therefore appropriate to punish Mr. Risacher for doing what would be demanded of an IC professional?
In fact, is it not contrary to such principles to suggest such a notion?

He has effectively thrown a “stupid flag” and now someone is more concerned about the fact that his comments might be professionally embarrassing/inconvenient. Nowhere in the ethics regulations, does it say that it is ethical to shoot the messenger of inconvenient truths.

Amen. Thank you.

2 thoughts on “The Ethics of Blogging as a Fed

  1. Bob Gourley

    Dan, thank you for publishing this. I would encourage more people to write and also always encourage people to talk to DoD ethics lawyers like you did. They can be very helpful and I’ve always found them appreciative of good questions.

    I also wanted to say your post fired a couple neurons in my head and made me want to mention some memories:
    - In 1994 I was encouraged by leaders on the staff I was working on to write up some of the joint ideas we had been debating. I published it in USNI Proceedings and was excited to get something published. Most were supportive, but a crusty old general in my chain of command sat me down and told me if I had time to write I must not be doing my job and clearly I don’t have enough to do. I know those views still exist.
    - Years later I watched folks like General Cartwright maintain blogs and interact with all sorts of people. It was all high-side, but very virtuous. At the same time, I learned of orders by one of the previous ODNI CIOs that no one on his staff would blog, period. Clearly that old think I encountered in the 90s was still around.
    - Then later I was so excited to listen to the great thoughts of Admiral Stavridis (see: http://ctovision.com/2008/06/adm-stavridis-think-read-write-and-publish-and-blog-too/ ). Clearly there is a guy who must be in your camp.
    - It is great hearing that your chain of command is in your camp. That must give you a really great feeling knowing they have your back. But the fact that someone else raised the question says public servants long into the future will need to be ready to defend themselves and their actions from people who have ill-formed opinions on these matters.

    Anyway, thanks for providing the results of your research into this, I think future writers will thank you also.

    Reply
    1. Dan Post author

      Thanks for your comments, Bob.

      Annoyingly, Signal Magazine changed their URLs, so the link in your post is now stale. (The updated link is apparently http://www.afcea.org/content/?q=2008/06/17/27)

      A colleague of mine in OUSD(AT&L) once opined that if they really wanted to implement the Net-Centric Data Strategy, they should give everyone (or at at least every “knowledge worker”) in DoD a blog … and rate them not just on what they accomplished, but also on how well they described what they accomplished. I’m not sure how that would work in practice, but it could sure improve information sharing!

      It has a sort-of “tree-falls-in-the-forest quality”. If I provide an enterprise service that enables a warfighting capability, but no one knows about it, did I really do it?

      Reply

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