Privacy, sunshine and the electronic frontier: That slippery slope in North Carolina

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N.C. legislators have introduced a bill that would allow local governments across the state to opt out of providing copies of email lists they maintain.

Several other local bills specifically allow the governments of Charlotte, Cornelius, Huntersville and Greenville to opt out of providing the copies. The contents of the list would still be open to public inspection.

The statewide bill says this, in part:

“AN ACT to make effective statewide a local act providing that a list of the email addresses of persons subscribing to local government email lists is open to public inspection but is not required to be provided, and to provide that the local government may use that list only for the purpose that it was subscribed to.”

Under North Carolina’s open records law, governments must provide copies of the records they maintain. But in the Charlotte area, some people have expressed concerns about how copies of email addresses can be used for marketing.

Specifically, the Charlotte Observer came under fire after an open-records request for email lists maintained by the city of Charlotte, Cornelius, Huntersville and Davidson. Editor Rick Thames wrote a column responding to the criticisms.

It’s no wonder email lists and marketing nowadays make people nervous. The most recent visible case happened when hackers obtained names and emails from the marketing company Epsilon. Thousands of consumers had their email addresses stolen. Organizations affected included the College Board and Target.

But that’s just the most recent case. Consumer concern about the privacy of their data has been growing for years. They’ve joined email lists for one purpose and watched their addresses be used for a different purpose. And as political battles heat up for 2012, partisan groups are collecting email addresses as fast as they can, without clear direction on how those emails will be used in the future.

Still, the proposed N.C. bills and any move to greater secrecy should cause concern among citizens. Exceptions to open records have a tendency to grow, with open records statutes adding clauses for government agencies that feel they need to do their work in the dark.

Open government data gives everyone a chance to watch how government is spending money and time. And sometimes, that data also can serve to grow new, independent businesses, like the crime mapping company already used by the town of Cornelius. Access to that kind of data needs to be available to everyone on an equal footing, not only to specific firms that cut deals with local governments.

The Electronic Frontier Foundation has wrestled with the balancing of privacy and sunshine for years. Formed in 1990, the foundation’s mission is to defend free speech, privacy, innovation and consumer rights.

In 2004, the foundation issued a white paper about email. The title: “Noncommercial Email Lists: Collateral Damage in the Fight Against Spam.”

Much of the paper deals with the technical issues some email list owners face with spam filters, but it also includes strong recommendations for best practices for those owners.

It also highlights an important principle:

“Individual recipients should have ultimate control over whether they receive the messages they wish to receive. They can be assisted by software or anti-spam services, but knowledge of and control over receipt of email should remain with recipients and end users.”

The most relevant best-practice recommendation in this case: Allow the consumers a chance to opt in to email lists. That’s a basic principle of good marketing firms that work to protect the reputation of the companies they represent.

The specific words:

Senders must ensure that recipients have taken positive action indicating that they wish to be signed up for a mailing list.

More from the paper:

“While this problem is less of an issue with noncommercial lists, recipients do report that they have been added to noncommercial mailing lists without their consent. Sometimes this happens after they participated in a single call-to-action or responded to an issue online. Other times, organizers use or purchase a mailing list set up for one purpose as a ‘starter list’ for another, with the incorrect assumption that the people on the first list are likely to be interested in the second.”

The paper from EFF is worth reading for anyone owning and using email lists and anyone who signs up for a list. But the best practices aren’t law, and they won’t stop marketers, politicians or community organizers from using open records laws to obtain email lists when they can.

So should North Carolina limit access to copies of email lists compiled by local governments?

If so, N.C. legislators should proceed cautiously and choose the law’s words narrowly to avoid shutting off access to information that doesn’t threaten personal privacy. The proposed laws do take a step in the right direction by limiting government’s use of email lists for purposes different than initially intended.

But the contents of emails sent to subscribers of government lists should remain public and should be able to be copied electronically for data analysis.

Also, the number of subscribers to the government email lists should be easily available and easily duplicated. Any other data about the data that the government collects and that does not threaten privacy should be available electronically. As technology evolves, the value of that data about the data can grow in ways that are unclear now.

Any law to protect privacy that affects sunshine should be written narrowly to allow the value of information in the future to grow. Legislators should also proceed cautiously with granting exceptions to the N.C. open records law. Exceptions have a tendency to grow as well.

Sources:
Statewide bill: House Bill 544, sponsored by N.C. Reps Ruth Samuelson, Tricia Cotham, Frank Iler and Joe Tolson.
Local bills:
Charlotte: House Bill 543, sponsored by N.C. Reps Ruth Samuelson and Tricia Cotham.
Huntersville: Senate Bill 270, sponsored by Sen. Malcolm Graham.
Cornelius: House Bill 441, sponsored by Rep. Tim Moore.
Greenville: Senate Bill 182, sponsored by Sen. Clark Jenkins, Louis Pate and Richard Stevens.

Disclosure: I work at the Charlotte Observer as a community editor covering an area that includes Davidson, Cornelius, Huntersville and parts of the city of Charlotte. Opinions here are my own and were written on my own time.

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