Saturday, March 28, 2009

The Right to Privacy - Bloggers and Privacy

The US Constitution does not explicitly protect people's right to privacy by name. The Bill of Rights (the first ten Amendments to the US Constitution) include some specific cases where privacy (without using that word) is to be protected:

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And some people point to the Ninth Amendment as a place where privacy is protected:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It wasn't until the Privacy Act was passed in 1974 that Americans had a specific law that addressed privacy, though it was limited to information the federal government collected and kept about individual citizens. (There were previous laws that gave some privacy protection in certain areas like the Fair Credit Reporting Act. The Freedom of Information Act, passed in 1966 mentioned personal privacy as one of the reasons that might prevent release of information. But that was not spelled out until the Privacy Act eight years later.)

However, the Alaska Constitution begins with a list of rights and number 22 explicitly addresses privacy.
§ 22. Right of Privacy

The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section. [Amended 1972]

The Constitution isn't too specific about what this means, though the Alaska Supreme Court has interpreted it to protect, among other thnings, people who smoke marijuana, who choose to have abortions, and to protect people from forced psychiatric medication.

I note here that the language says, "The legislature shall implement this section." I'm guessing that means the legislature is to spell out what specifically the right of privacy means. I'm guessing that it doesn't mean that members of the legislature should be revealing the names of individual citizens who choose to express their opinions anonymously for whatever reason.

However, on further googling, I discovered this ruling by then Commissioner of Revenue Darryl Rexwinkel.*
The privacy provision of the Alaska Constitution3 has consistently been interpreted as a "state law" exception to the public records law. See AS 09.25.120(4). These privacy protections have been construed by the Alaska Supreme Court to include protecting information that is sensitive and confidential and "which a person desires to keep private and which, if disseminated, would tend to cause substantial concern, anxiety, or embarrassment to a reasonable person." Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 479 (Alaska 1977) (quoting 3 Hasting Const. L. Q. 249 (1976)).

In 1990, the legislature passed laws directing the state to provide special notice when requiring a person to supply personal information so that the person may, among other things, challenge the accuracy or completeness of the information. Chapter 200, SLA 1990. As a part of this Act, the legislature adopted a definition of "personal information." Sec. 15, ch. 200, SLA 1990. This definition specifically excludes a person's name and address. AS 44.99.350(2).4

Although we don't know whether the legislature was explicitly interpreting, or implementing, the constitutional right to privacy when it adopted AS 44.99.350,5 this definition3 Alaska Constitution, article I, section 22, provides that "[t]he right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."4 AS 44.99.350(2) (enacted as AS 44.99.040 and renumbered in 1990) reads:
personal information means information that can be used to identify a person and from which judgments can be made about a person's character, habits, avocations, finances, occupation, general reputation, credit, health, or other personal characteristics but does not include a person's name, address, or telephone number, if the number is published in a current telephone directory, or information describing a public job held by a person. (Emphasis added.) 5

Although it is clear that a legislative enactment cannot abrogate constitutional guarantees, the privacy section of the

Hon. Darrel Rexwinkel, Commissioner April 1, 1992
Department of Revenue Page 3

of "personal information" is an implicit statement by the legislature that it does not consider a person's name or address to be protected by the right to privacy. On this basis, we conclude that a person's name and address are subject to disclosure under AS 09.25.110 and 09.25.120. We thus overrule the advice contained in our memorandum of advice dated July 15, 1987, and now advise you that the department must provide the names and addresses of PFD applicants to any member of the public who requests the information and pays the required fees.
[* For those of you wondering what happened to Rexwinkel, I found this from the Nevada Department of Corrections dated Jan. 22, 2002:
Darrel Rexwinkel, appointed as Assistant Director of Support Services, has more than 36 years’ experience in fiscal management. Mr. Rexwinkel is a Certified Public Accountant who has served as the Director of the Department of Revenue for the State of Alaska, as well as the Chief Fiscal Officer for the Municipality of Anchorage, and has been employed by the State of Nevada since 1996. His fiscal experience includes governmental entities as well as corporate enterprises.]

So, some of you are probably scratching your heads and saying, "What is this all about?"

Well, probably the most well-known and read anonymous Alaskan blogger's identity was sent out by State Rep. Mike Doogan in an email to his constituents yesterday (not exactly sure what day it was with the time difference and all). You can read about it at any of a number of Alaska blogs - at Mudflats itself or Immoral Minority (which has links to more sites.)

Judging from the comments at Mudflats, many of her readers are still in the second stage of grief - anger - and it's too early to have a rational discussion of the pros and cons of anonymous blogging. (See the many negative reactions to Bob Poe's post on Mudflats.) One has to wonder about the toll living in Juneau is taking on Mike Doogan's mental health for him to out her, through a legislative email to constituents no less. I wonder what the woman who lets him live with her thinks.

But on the other hand, a blogger who has gets hundreds of thousands of hits a day is no longer "just me" although I understand that our own personal conceptions of ourselves change slowly. After all, my self conception got stuck at age 22 while my body kept getting older. But when you have as many readers as Mudflats and you write about politics you become a political force whether you acknowledge it or not. In some ways, Mudflats embodies for many, a more intelligent and capable version of the persona that Sarah Palin wanted to portray - "I'm just an ordinary Alaska woman." And just as Sarah got sucked into a vortex far more powerful than she might have expected, Mudflats followed her into that vortex.

Along with power comes pressure for transparency. At least in democracies. Mudflat appears to be the real thing - exactly as projected on her blog. But what if she were, hypothetically, being paid by, say, Outside 'interests'? Wouldn't we want to know that? Wouldn't we have a right to know? (Fortunately, my readership is modest and I run little danger of people writing that I said she was controlled by outside interests.)

I know that liberals have spent a lot of time and money trying require that people making political contributions over $100 are identified so that we can see where the money is coming from. We do this knowing that public exposure increases the likelihood that people will think about what they are doing and that voters will have a sense of who is supporting which candidates. And those who listened in on the three political corruption trials in Alaska know that Bill Allen was well aware of the contribution laws and the need for disclosure and it affected his behavior. (He sometimes used it as an excuse not to contribute, more often to find roundabout ways to contribute without being exposed.)

As Mudflats points out in her very clearheaded post,
I choose to remain anonymous. I didn’t tell anyone why. I might be a state employee. I might not want my children to get grief at school. I might be fleeing from an ex-partner who was abusive and would rather he not know where I am. My family might not want to talk to me anymore. I might alienate my best friend. Maybe I don’t feel like having a brick thrown through my window. My spouse might work for the Palin administration. Maybe I’d just rather people not know where I live or where I work. Or none of those things may be true. None of my readers, nor Mike Doogan had any idea what my personal circumstances might be.

Just as gay people should be allowed to come out on their own terms, so should anonymous bloggers. But when gay legislators cover their sexual orientation behind an anti-gay facade, many gay activists feel justified in exposing them. But Mudflats was totally open about her generic identity, there was no hypocrisy.

And we have plenty of models of anonymous heroes. Some of Mudflats' commenters have pointed to the writers of the Federalist Papers and to Ben Franklin writing under the cover of pseudonyms, and to Superman's secret identity. Let's not forget the Lone Ranger and Zorro. There's no shame in being an anonymous hero.

But heroes are in the eye of the beholder. Mudflats was no hero to the Palin Administration. She had considerable power to attract attention to things the Palin team would rather not be spotlighted. And Doogan seems to have a lot of problems with how the 'rules' of journalism he got at school are morphing in the internet age.

When I started this blog I chose to be cagey about identifying myself. I wasn't trying to hide, but I wanted readers to read the posts without judging my words through the filters of the labels I would have to use to describe myself. Readers who read enough of my blog would figure out a lot about who I was. And I didn't hide my identity from others outside the blog. I did feel a bit violated the first time someone mentioned my name with a link to the blog, so I get a sense of Mudflat's reaction. But part of me also acknowledged I had to take responsibility for what I wrote. But I also think that a male's sense of vulnerability is different from a female's. (We males only think we're less vulnerable, females know that everyone is vulnerable.)

I would also dispute Doogan's claim that being anonymous isn't being accountable. I guess in part that depends on what "accountable" means to him. Technically legislators are accountable at election time, but in many ways they are hidden from public view so they really aren't all that accountable. But bloggers are accountable to their readers - if they have any (and if they don't none of this matters) - who will immediately post comments to challenge what they disagree with. And other bloggers will call them out as well.

Mudflats didn't choose to become a blogger celebrity overnight, but it happened. She isn't 'just me' to the politicians whom she covers. But they are free to post their responses on her blog. That's what freedom of speech is all about.

There's lots to mull over here. As with most issues it isn't just either/or. There are conditions in which being anonymous might be appropriate and where being transparent might be appropriate. And even if we make a general checklist, it will always be a judgment call in the gray areas.

What's clear in my mind is that Doogan's lost touch. I can find no justification for his action. As a State Legislator he has duty to uphold the Constitution, and that includes Article I, Section 22. The State Constitution protects individual privacy. I can't find anything in the Federal Constitution that makes free speech contingent on identifying the speaker.

One last thought. A commenter on Progressive Alaska said that Mike Doogan was the anonymous blogger at Billy Muldoon, a blog I linked to early on before it closed shop. If that's true (and there is no confirmation on this,) how would that square with his strong stand against anonymous blogging? And wouldn't he at least understand that someone might want to blog anonymously? If you go to Billy Muldoon now, you get this:

This blog is open to invited readers only

[Update: Sunday, March 29, 2009, 11am Thai Time: Dawn Teo writes at Huffington Post that:

Many locals believe that Doogan is secretly the identity behind former local blogger Billy Muldoon, but Doogan has categorically denied any connection to Muldoon.
There were no links to the denials and I couldn't find them through google.]


  1. I can find no justification for his action.

    If it comes to balancing a right (privacy) guaranteed by a state constitution against a right (speech) explicitly guaranteed by the federal constitution, the balance will fall in favor of the explicit federal right.

    Rep Doogan has a legal justification for his action. Whether he has a moral/ethical justification may be another conversation.

  2. I assume you mean he has the legal right to free speech here. The right to free speech isn't justification in my mind. Just because you have the right to do something doesn't mean you should do it.

    I could have been clearer and said "moral justification" in the first place.

  3. I don't think the "gold mine" that Mr. Doogan just opened up for his detractors or future opponents is found in privacy law, but ethics law.

    He's doing all of this on the state dime during the Legislative session.

  4. Mike's been losing it ever since he lost his Daily Snooze column. He sneers at anyone from outside his district who asks him to act in the interest of all Alaskans, and he is rude even to his constitutents. In spite of his family's long history in Democratic Party politics, I think he's entirely unsuited to being a politician.

    The most disturbing thing about this is that he violated Jeanne's right to privacy. As a public figure, Mike has NO right to privacy, but he chose to be a public figure. AKM chose to remain anonymous, in the tradition of such great Americans as James Madison and Alexander Hamilton.

    I Doogan can't take the heat, he should get the hell out of the kitchen.

  5. He's doing all of this on the state dime during the Legislative session.

    I was the military for 5 years. During that period during my off hours (liberty) I was subject to recall, my superiors could call me back to work.

    So every time I ate a burrito, drove my car or drank a beer it was arguably on the federal dime.

    But I still had (mostly)free speech when I was not at work.

    For the nintey days the legislature is in session he is not always 'on the state's dime.' He can sleep, go to a bar, get trashed, read a book not related to any bill and sleep in on Sunday.

    For an interesting read on Alaska Legislative Ethics The pdf contains the legislative ethics law up to the end of 2008 with annotated court cases and informative footnotes.

    Arguably it could be viewed as an ethics violation that Rep. Doogan used his Legislative email.

    But as we see on page A-3 of the above PDF, Rep Doogan can use state resources":

    limited use of state property and resources for personal purposes if the use
    does not interfere with the performance of public duties and either the cost
    or value related to the use is nominal...

    Also, legislative news letters are specifically covered permissible uses of State resources:
    [A legislator may send] any communication in the form of a newsletter to
    the legislator’s constituents, except a communication expressly advocating
    the election or defeat of a candidate or a newsletter or material in a
    newsletter that is clearly only for the private benefit of a legislator or a
    legislative employee

    So the question then becomes was outing AKM 'clearly only for the private benefit of a legislator?'

    So Rep. Doogan can use his news letter for his personal benefit so long as that is not the 'only' reason. As he has that 'other' reason, he is cleared under legislative ethics.

    It seems that what Rep Doogan did was within the law and he will have to justify his actions not to the courts, but to his constituents come November 2010.

  6. Thanks Steve, looks like we're looking for the same info.

    I've heard from lots of people that Doogan is Muldoon. I've found a few places where people said emphatically that he is, and I found one reference to Doogan denying it.

    If anyone can verify that Doogan is Muldoon and provide some sort of evidence pointing to that fact, I would love to provide an update to my story. My email address is in my HP bio. Feel free to email me.


  7. I know to an absolute certainty that Billy Muldoon is Stan Jones, another former Daily News reporter. Billy Muldoon is not Mike Doogan.

  8. In my history presentation I referred to the 14th Amendment last week. It was about the rights of Afro-Americans.

  9. And isn't it a confusing name: Bill of Rights? It was made in the UK earlier as well. As far as I remember in the end of 1680s. It described royal tasks and obligations.

  10. Thanks for all the comments. You've all added some useful wrinkles to this discussion.

    Ropi, it's nice to know that Hungarians are getting a good education, but depressing to think about how few American high school students could even find Hungary on a map, let alone comment on Hungarian history.

    Anonymous, you gave me the hint I needed. You can read a new post with Stan Jones' response to my email asking if he is the author of Billy Muldoon.


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