{"id":460,"date":"2013-04-07T14:15:00","date_gmt":"2013-04-07T18:15:00","guid":{"rendered":"https:\/\/risacher.org\/jfdi\/?p=460"},"modified":"2014-05-01T17:23:03","modified_gmt":"2014-05-01T21:23:03","slug":"the-ethics-of-blogging-as-a-fed","status":"publish","type":"post","link":"https:\/\/risacher.org\/jfdi\/2013\/04\/the-ethics-of-blogging-as-a-fed\/","title":{"rendered":"The Ethics of Blogging as a Fed"},"content":{"rendered":"<p style=\"text-align: right;\"><em>[<a title=\"Intelink-U Mirror\" href=\"https:\/\/blogs.intelink.gov\/blogs\/drisacher\/?p=229\">mirrored on Intelink-U<\/a>]<\/em><\/p>\n<p>[Update, 1 May 2014:\u00a0 The issue of 1st amendment free-speech protection as a fed is more complicated than I knew at the time this post was written.\u00a0 I&#8217;ve recently learned of the 2006 Supreme Court Decision, <a title=\"Wikipedia on Garcetti v. Ceballos\" href=\"http:\/\/en.wikipedia.org\/wiki\/Garcetti_v._Ceballos\"><i>Garcetti v. Ceballos<\/i><\/a>, which significantly restricts the protection for speech as a government employee.\u00a0 I will probably write a new post once I&#8217;ve read the Court&#8217;s opinions and understood the implications thereof.]<\/p>\n<p>So.<\/p>\n<p>I got in trouble for blogging.\u00a0 Sorta.\u00a0 And I got applauded too.\u00a0 More on that later.<\/p>\n<p>One of the posts on my blog got noticed.\u00a0 People were offended that I would speak out of turn.\u00a0 Apparently, a senior military officer printed a copy of the post and handed it to my boss&#8217;s boss&#8217;s boss, and recommended that I receive ethics counseling. I suspect that he has not read the <a title=\"Cluetrain Manifesto\" href=\"https:\/\/risacher.org\/jfdi\/2013\/04\/cluetrain\/\">Cluetrain Manifesto<\/a>.<\/p>\n<p>To the great credit of my leadership, they took this under advisement.\u00a0 Some of them even read the blog.\u00a0 One of the comments that got back to me was, &#8220;That was a well written post.&#8221;\u00a0 My supervisor did call the <a title=\"SOCO\" href=\"http:\/\/www.dod.mil\/dodgc\/defense_ethics\/\">Standards of Conduct Office<\/a>, 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.\u00a0 I met with a very informed and articulate attorney and had a pleasant conversation with her.<\/p>\n<p>Here is a synopsis of what I&#8217;ve learned about defense-civilian-blogger&#8217;s rights:\u00a0 (<span style=\"color: #339966;\">side commentary in green<\/span>)<\/p>\n<ul>\n<li>I absolutely have a first-amendment right to free speech and my leadership was very respectful of that right. <span style=\"color: #339966;\">[UPDATE: The first-amendment protections apply to me as a citizen, but not to my speech as an employee, under <a title=\"Supreme Court decision\" href=\"http:\/\/www.supremecourt.gov\/opinions\/05pdf\/04-473.pdf\">Garcetti v. Caballos<\/a>]<\/span><\/li>\n<li>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.\u00a0 (<a title=\"Joint Ethics Regulation\" href=\"http:\/\/www.dtic.mil\/whs\/directives\/corres\/pdf\/550007r.pdf\">JER<\/a> 3-305.a, &amp; <a title=\"5 CFR 3601.108\" href=\"http:\/\/www.law.cornell.edu\/cfr\/text\/5\/3601.108\">5 CFR \u00a7\u00a03601.108<\/a>)\u00a0<span style=\"color: #339966;\"> I knew this and had such a <a title=\"Disclaimers\" href=\"https:\/\/risacher.org\/jfdi\/disclaimers\/\"><span style=\"color: #339966;\">disclaimer<\/span><\/a> already.\u00a0 The attorney reviewed my disclaimer and found it adequate.<\/span><\/li>\n<li>Use of the word &#8216;we&#8217; 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).\u00a0 I was strongly discouraged from using the word &#8220;we&#8221; in this way, especially considering that it is not necessary to do so to make my points.<br \/>\n<span style=\"color: #339966;\">My inner lawyer wanted to argue this point, but it&#8217;s fundamentally reasonable.\u00a0 (I subsequently edited my posts to avoid this practice.)<\/span><\/li>\n<li>&#8220;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 <em>if it meets the criteria in DoDI 5230.29.<\/em>&#8221; (<a title=\"DoDD 5230.09\" href=\"http:\/\/www.dtic.mil\/dtic\/pdf\/submit\/523009p.pdf\">DoDD 5230.09<\/a>) &#8220;Writing that pertains to <em>military matters, national security issues, or subjects of significant concern<\/em> to DoD shall be reviewed for clearance by appropriate security and public affairs offices prior to publication.&#8221; (<a title=\"Joint Ethics Regulation\" href=\"http:\/\/www.dtic.mil\/whs\/directives\/corres\/pdf\/550007r.pdf\">JER<\/a> 3-305.b &amp; <a title=\"DoDD 5230.09\" href=\"http:\/\/www.dtic.mil\/dtic\/pdf\/submit\/523024p.pdf\">DoDD 5230.09<\/a> para. 4.b, <em>emphasis added<\/em>)<br \/>\n<span style=\"color: #339966;\">The dilemma with this restriction, of course, is that the definition of &#8220;military matters, national security issues, or subjects of significant concern&#8221; is subjective. I was given two pieces of advice:<\/span><\/p>\n<ul>\n<li>Recommendation #1: In order to avoid the running afoul of this restriction, I could submit my blog posts to the <a title=\"Office of Security Review\" href=\"http:\/\/www.dtic.mil\/whs\/esd\/osr\/\">Office of Security Review<\/a>.<br \/>\n<span style=\"color: #339966;\">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&#8217;ve been disinclined to waste the time and resources of the OSR.\u00a0 (Waste is officially frowned upon, BTW.)<\/span><\/li>\n<li>Recommendation #2: I could submit posts to my supervisor to review, prior to publication.<br \/>\n<span style=\"color: #339966;\">This is similarly unsatisfying, in my humble opinion.\u00a0 To the extent that anything I might post is controversial (but protected) speech, the consequences are risks that <em>I<\/em> must be willing to accept.\u00a0 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. <\/span><a title=\"Risk Aversion and Job Security\" href=\"https:\/\/risacher.org\/jfdi\/2013\/03\/risk-aversion-and-job-security\/\">previous post on Risk Aversion<\/a><span style=\"color: #339966;\">)<\/span><\/li>\n<\/ul>\n<\/li>\n<li>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. (<a title=\"5 CFR 2635.807\" href=\"http:\/\/www.law.cornell.edu\/cfr\/text\/5\/2635.807\">5 CFR \u00a7\u00a02635.807<\/a>)<\/li>\n<li>&#8220;An employee shall not engage in a <em>financial transaction<\/em> using nonpublic information, nor allow the improper use of nonpublic information<em> to further his own private interest or that of another<\/em>, whether through advice or recommendation, or by knowing unauthorized disclosure.&#8221;\u00a0 (<a title=\"5 CFR 2635.703\" href=\"http:\/\/www.law.cornell.edu\/cfr\/text\/5\/2635.703\">5 CFR \u00a7\u00a02635.703<\/a>, <em>emphasis added<\/em>)<br \/>\n&#8220;Non-public information&#8221; is defined as, &#8220;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.&#8221; (<a title=\"5 CFR 2635.703\" href=\"http:\/\/www.law.cornell.edu\/cfr\/text\/5\/2635.703\">5 CFR \u00a7 2635.703<\/a>)<br \/>\n<span style=\"color: #339966;\">This point I found very interesting.\u00a0 Several government employees that I spoke with believed that it was inappropriate or impermissible to disclose <em>any<\/em> nonpublic information gained as a result of public employment, for <em>any<\/em> reason.\u00a0 The actual guidelines <strong>do not<\/strong> say that, and to do so would run contrary to the many whistleblower-protection laws that exist.\u00a0 The statute does say that it is unethical use non-public information to &#8220;<em>further his own private interest or that of another<\/em>&#8220;.\u00a0 On the contrary, using non-public information (i.e. my personal experiences in gov&#8217;t service) to illustrate a principle about efficiency of government activities, is precisely <em>not<\/em> to further my own <em>private<\/em> interest, but rather to further a <em>public<\/em> interest.<\/span><br \/>\nIn short, &#8220;insider trading&#8221; is forbidden;\u00a0 &#8220;<a title=\"wikipedia on inside baseball\" href=\"http:\/\/en.wikipedia.org\/wiki\/Inside_baseball_%28metaphor%29\">inside baseball<\/a>&#8221; is not.\u00a0 (Unless it&#8217;s classified or otherwise <a title=\"NARA on CUI\" href=\"http:\/\/www.archives.gov\/cui\/\">controlled <\/a>information.)<\/li>\n<\/ul>\n<p>That was my official &#8220;ethics counseling&#8221; on blogging as a federal civilian.\u00a0 There was one additional issue, concerning cross-posting to Intelink-U.\u00a0 Separately,\u00a0 I asked this question to a colleague on Intelink staff, who passed it on to local counsel.\u00a0 Here is an excerpt from the response, which is too precious not to share:<\/p>\n<blockquote><p>Having read the blog, I have couple of observations on the blog and its content&#8211;<\/p>\n<ul>\n<li>I see nothing in the content that violates the Intelink Terms of Use<\/li>\n<li>A blog, by definition, is personal commentary on a relevant topic.<\/li>\n<li>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.<\/li>\n<\/ul>\n<p>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), &#8220;Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities. Albeit, it is not &#8220;politically correct\/wise&#8221; to use a public forum as the method of &#8220;disclosure.&#8221;<\/p>\n<p>His use of a &#8220;real&#8221; example to make his points about the well known disconnects between many &#8220;program management&#8221; and &#8220;operations&#8221; activities. Without such a concrete example, however, his commentary would have been vague and hypothetical, and dismissed as such.<\/p>\n<p>And, oh by the way, while he is not a DNI employee one of the core values and performance measure is Courage&#8230;&#8221;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.&#8221; In fact, a key assessment criteria for all DNI employees under the Personal Leadership and Integrity section is &#8220;a commitment to excellence, and the courage and conviction to express their professional views&#8221;<br \/>\nThere are a few relevant questions one should consider:<\/p>\n<p>Is is therefore appropriate to punish Mr. Risacher for doing what would be demanded of an IC professional?<br \/>\nIn fact, is it not contrary to such principles to suggest such a notion?<\/p>\n<p>He has effectively thrown a &#8220;stupid flag&#8221; 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.<\/p><\/blockquote>\n<p>Amen. Thank you.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>[mirrored on Intelink-U] [Update, 1 May 2014:\u00a0 The issue of 1st amendment free-speech protection as a fed is more complicated than I knew at the time this post was written.\u00a0 I&#8217;ve recently learned of the 2006 Supreme Court Decision, Garcetti v. Ceballos, which significantly restricts the protection for speech as a government employee.\u00a0 I will [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,16,12],"tags":[],"class_list":["post-460","post","type-post","status-publish","format-standard","hentry","category-blogging","category-risk","category-work"],"_links":{"self":[{"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/posts\/460","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/comments?post=460"}],"version-history":[{"count":15,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/posts\/460\/revisions"}],"predecessor-version":[{"id":1398,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/posts\/460\/revisions\/1398"}],"wp:attachment":[{"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/media?parent=460"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/categories?post=460"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/risacher.org\/jfdi\/wp-json\/wp\/v2\/tags?post=460"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}