Beth Krom Smears the Irvine Tattler
Mayor Falsely Alleges Her Council Critics
Use This Web Site As “A Campaign Tool”
By Stephen C. Smith
Irvine Tattler Publisher
Posted June 21, 2008
Click Here to watch the June 10, 2008 City Council discussion
about the e-mail agenda item. Windows Media Player and a broadband (cable modem, DSL) Internet connection required.
Larry Agran claims pornographers may get their hands on your child's e-mail address if it's on file at City Hall.
(Photo Source: City of Irvine)
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Mayor Beth Krom falsely accused Councilwoman Christina Shea during Irvine's June 10 City Council meeting of
controlling the Irvine Tattler, and also falsely claimed that members of the community have
somehow “received” this web site in e-mail.
“We have had people come to the Council, I have had people contact me who have received correspondence from you,
who have received correspondence from Councilmember Choi, who have received the Irvine Tattler, which seems by all
measure to be something that is a campaign tool on behalf of yourself and Councilmember Choi,” Krom said.
The About menu item above documents who I am and why
I am running this web site. Krom failed to provide any evidence to the contrary.
Her claim that people are somehow receiving this web site in e-mail is easily proven false. As anyone who's used the
Internet knows, it's impossible to “receive” a web site in e-mail. A person would have to open a web browser
and enter this site's address to view it.
A subscription option is available, but it is impossible for
a person to be on the list without approving it. The subscription process prompts the visitor to enter an e-mail address,
which then sends a confirmation message to that address. The message explains that if the individual did not register
for the subscription, no further action should be taken and they will not receive any e-mails from the
Irvine Tattler. Each message sent to subscribers also has a cancellation option so no further messages will
be received.
But now that Krom has made the allegation, I'll give the idea serious consideration. A citywide e-mail solicitation
should result in the
Irvine Tattler reaching many more Irvine residents to inform them about the falsehoods she tells at the Council dais.
Agran: Pornographers Want Your City Hall E-Mail Address
The flap over e-mail addresses began at the May 27 City Council meeting. Councilman
Larry Agran accused Shea of using e-mail addresses collected by City Hall to send “political spam.” The truth
was that Shea had sent an informational newsletter to 500 Irvine residents, following directions given by City staff.
The staff report prepared for the June 10 City Council
followup stated that “the use of City resources to produce and disseminate e-newsletters is an appropriate
City expenditure as long as the content of the newsletter is confined to matters of official City business or concern
and other matters subject to the City's jurisdiction.”
Without any legal basis to support his claims, Agran alleged during the June 10 meeting that pornographers will use the
California Public Records Act to obtain your child's e-mail address from Irvine City Hall.
Anything could happen with those e-mail records. They can be sold, they can be exchanged, they can be given to others,
they can become part of what I regard as the political spam world that is now out there where you're just constantly
bombarded with political spam that you never intended to get in the first place. Moreover, more sinister things
can happen. If they are sold to commerical vendors, they can be sold for example if you're on a list of pet owners,
next thing you know you're getting advertisement about pet products. If you're a child and you signed up for a class,
next thing you know you'll be getting information about swimming or fine arts or whatever it is from a commercial
vendor. The information also can find its way to pornographers! This is just part of the world that we live in.
Agran asserted that there is “a reasonable privacy expectation” when the City collects an e-mail
address from a resident.
The law says that's not true.
California's
Security Breach Law, passed by the 2002 Legislature and commonly known as SB 1386, defines what is considered
personal information protected by the law. It includes Social Security numbers, driver's license or California identification
numbers, bank account number, credit and debit numbers. The law states, “'Personal information' does not include
publicly available information that is lawfully made available to the general public from federal, state, or local government records.
The California
Public Records Act exposes all state, county and local government documents to public inspection with limited
exceptions. An e-mail address is not one of those exceptions.
The Great Park Conservancy, and the Orange County Great Park Corporation chaired by Agran, have used the California
Public Records Act to obtain e-mail addresses acquired by City Hall so they could send unsolicited e-mails to
Irvine residents.
Irvine City Attorney Phil Kohn stated during the June 10 meeting, “It was the assessment of the staff, with which I
concurred, and in the absence of any statutory or case law authority, that such information could be released.”
CAN-SPAM
Responding to increasingly abusive commercial e-mail spammers, Congress and the President enacted in 2003 the
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 — more commonly known by its
acronym, CAN-SPAM.
In its opening findings, the Act declares that “the convenience and efficiency of electronic mail are threatened by
the extremely rapid growth in the volume of unsolicited commercial electronic mail.” (Emphasis added.)
The law defines a “commercial electronic mail message” as “any electronic mail message the primary
purpose of which is the commercial advertisement or promotion of a commercial product or service (including content
on an Internet website operated for a commercial purpose).” The law does not apply to messages of a non-commercial
nature, such as an informational newsletter sent by an elected official, a political campaign, or an individual
expressing a political opinion.
The Federal Trade Commission, charged with enforcing CAN-SPAM, sought to collect public comments for how to enforce
the Act but realized that certain information collected electronically from the public could become available under
the federal government's Freedom of Information Act. At a minimum, submissions had to include the last name, state
and country of the commenter. Optional fields included the commenter's first name and mailing address, along with
other optional fields. (The commenter's e-mail address was not one of the fields.)
The FTC published a Privacy Impact Assessment which discussed how collected information could be protected:
... The Commission cannot rule out possible requests for public disclosure of any nonpublic portions of the database
pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552. Under that Act and the agency's FOIA rules, the agency
may be required to make such information publicly accessible unless it is determined that such disclosure would constitute
a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6, 5 U.S.C. 552(b)(6), or some
other exemption applies. The Commission has determined that all of the above uses or disclosures of the data are
authorized and both relevant and necessary to the purposes for which the data are collected.
Research by the Irvine Tattler found two examples at the state level where
e-mail information is exposed to the public.
The Policy on the Privacy of
Electronic Information at the University of North Carolina states:
Electronic mail and other data stored on University computers may constitute a public record like other documents
subject to disclosure under the North Carolina Public Records Act or other laws, or as a result of litigation. However,
prior to such disclosure, the University evaluates all requests for information submitted by the public for compliance
with the provisions of the Act or other applicable law.
A Texas-based spammer used that state's public information law in February 2003 to obtain all e-mail addresses
collected by the University of Texas. The spammer then deluged the school's servers with commercial solicitations.
A federal
appeals court unanimously ruled in August 2005 that the university had the right to block the spam e-mails. The court
did not, however, rule that the school had the right to deny the freedom of information request.
A June 16,
2008 article in the Orange County Register surveyed Orange County cities and found none that felt
they could legally hide e-mail addresses from a Public Records Act request. Reporter Sean Emery wrote:
Huntington Beach officials said that since e-mails are considered public information they would be required to release the
information. Huntington Beach will now look into including a note to residents warning them of the possibility of their
e-mail addresses being released, officials said.
The FTC Privacy Impact Assessment recommended similar action on its web site, to inform commenters that any information
they submitted could be released under a FOIA request.
Should the City of Irvine choose to continue collecting e-mail addresses, it is this author's opinion that they should
consider adding a declaration that any information submitted on forms — written or electronic — is subject
to release pursuant to the California Public Records Act.
The next discussion of this matter is scheduled for the City Council's meeting on June 24.
The staff report for the meeting indicates that “research is still ongoing” and that “The City Attorney
will present a brief oral report on the nature and status of the work undertaken by his office.”
