Last word on Bozeman privacy fiasco

By Michael Becker | Published: June 26, 2009
This entry is part 6 of 18 in the series Bozeman Privacy Fiasco

The City of Bozeman pri­vacy fiasco is over. Last week — after a media storm that brought a sledge­ham­mer of bad pub­lic­ity down on the city — Bozeman sus­pended its pol­icy of ask­ing job can­di­dates for Web user­names and pass­words on its back­ground check form. At its reg­u­lar meet­ing Monday, the city com­mis­sion for­mally ter­mi­nated the policy.

In an edi­to­r­ial on Thursday, the Bozeman Daily Chronicle praised the city for admit­ting its mis­take and cor­rect­ing it. “The pol­icy was a bad one, no doubt about it,” the news­pa­per wrote. “We get it, and our elected offi­cials get it. Now let’s move on. Certainly, there are more impor­tant issues fac­ing this community.”

I hang on that last sen­tence every time I read the edi­to­r­ial. More impor­tant issues fac­ing the Bozeman area? Sure:

  • A block of down­town remains in ruins after a gas explo­sion in March. No one’s sure who to blame. Many down­town prop­erty own­ers were under­in­sured. People are crit­i­ciz­ing the gas company’s response. A hand­ful of peo­ple lost their homes. Bozeman’s down­town may never recover.
  • Some res­i­dents are con­cerned about the appear­ance of gravel pits in the county, which have been used to sup­port the area’s — until recently — boom­ing growth. The pits degrade prop­erty val­ues and require rel­a­tively lit­tle gov­ern­ment oversight.
  • The city bought a his­tor­i­cal man­sion for mil­lions of dol­lars and is spend­ing more money to restore it, cit­ing some vague plan for rent­ing it out for pri­vate and pub­lic events.
  • The local hous­ing mar­ket is crash­ing and, along with it, the local con­struc­tion indus­try. The bubble-burst is reveal­ing just how hol­low the area’s econ­omy has been dur­ing the recent boom times.

Surely there are crime, agri­cul­tural, envi­ron­men­tal, wildlife and out­ly­ing com­mu­nity issues too, though I don’t know enough to men­tion them.

The fact that only two res­i­dents came to the city com­mis­sion meet­ing to speak about the pri­vacy fiasco might also be an indi­ca­tor of how (un)important the issue was to the city. Oh, and only one of those speak­ers stayed on topic, accord­ing to the Chronicle’s report.

What hap­pened? Thousands of peo­ple railed against the pol­icy from Wednesday night through Monday, yet only two peo­ple came out to speak?

It’s pos­si­ble the issue was over­hyped. But I don’t think you can put too much hype on an ille­gal pol­icy enacted by taxpayer-funded city employ­ees. Actions like that need to be exposed to the cold air of pub­lic opin­ion, enough cold air that the actions shrivel, turn brown and die.

No, hype was not the prob­lem. The prob­lem was that this was really only an issue for the peo­ple who use com­put­ers and social net­work­ing reg­u­larly. This was a Web issue. Regular cit­i­zens, who might not spend as much time online as the rest of us, weren’t as con­cerned. “Well, I don’t use those sites, so what do I care?” one of these peo­ple might say.

And it does seem like a small mat­ter, espe­cially to the offline crowd, until you real­ize that small vio­la­tions of our rights like this can lead to larger vio­la­tions later. The social net­work­ing pass­word thing stayed on that city form for sev­eral years before some­one found it inva­sive enough to men­tion it to the local news media. If the anony­mous tip­ster had decided not to send that e-mail, the pol­icy would still be in effect today.

And when the city can get away with putting an ille­gal pol­icy on one form — more­over, a pol­icy that most peo­ple don’t even know is ille­gal — then what will stop them from doing it again, from find­ing another way to invade cit­i­zens’ privacy?

Sure, this par­tic­u­lar pol­icy was enacted by peo­ple who were igno­rant of the big pic­ture, peo­ple unaware of how that par­tic­u­lar col­umn on a city form vio­lated law and abstracter prin­ci­ples that a lot of peo­ple think are vital to pri­vacy and liberty.

Sure, the city form was prob­a­bly writ­ten by peo­ple who thought they were doing the best thing for the com­mu­nity. I can under­stand. After all, they must have rea­soned, peo­ple can be very dif­fer­ent online than in per­son, and it would be good to get a glimpse of that online life to make sure the can­di­date is not secretly a mass mur­der­ing, gay-hating child moles­ter who hap­pens to post items depict­ing those lifestyle choices to their Facebook profile.

What’s that you say? That sort of infor­ma­tion is mostly password-protected? Well, let’s just ask for the pass­words. If they really want the job, they’ll give up the infor­ma­tion, right? Otherwise, they must have some­thing to hide, and that’s not the kind of per­son we want work­ing for Bozeman anyhow.

Privacy and rights vio­la­tions start inno­cently enough, but once you get away with some­thing, you often try to get away with it again, or get away with some­thing worse. That kind of esca­la­tion can be dan­ger­ous, espe­cially when it hap­pens in government.

The city now says that the pass­word field on the back­ground check form was not required. Yet the form doesn’t say which fields are optional and which ones are required. It makes no dis­tinc­tion. By that logic, all forms on the field are optional, and by exten­sion, the whole form is optional.

But of course, it’s not really optional, is it? Law requires that pub­lic employ­ees go through a back­ground check, so we must work our logic back­ward. If the check is required, then the form is required; and since no field on the form is indi­cated to be optional, then all fields must be required. Hence, the city was requir­ing peo­ple to give up their online passwords.

Even with­out the laws requir­ing back­ground checks, the form would still be required, at least in the mind of the appli­cant. If a poten­tial employer gives you a form to fill out and you don’t, that makes a state­ment, doesn’t it? In fact, with­hold­ing infor­ma­tion dur­ing a job inter­view process casts doubt on the appli­cant and decreases his chances for get­ting the job.

So Bozeman job appli­cants, prob­a­bly des­per­ate for a job in these harder than nor­mal times, filled out what­ever forms the city put in front of them, think­ing it bet­ter to com­ply than to be elim­i­nated from con­sid­er­a­tion. That seems like extor­tion to me, and it seems like some­thing we can’t just move on from.

In fact, I would ask the local media and the City of Bozeman itself to begin an in-depth review of every city doc­u­ment to ensure that the city isn’t ask­ing inap­pro­pri­ate ques­tions on any other forms. This sit­u­a­tion has shown us that with­out pub­lic over­sight, either by con­cerned cit­i­zens or the media or the blo­gos­phere, gov­ern­ments will step over the line, pur­pose­fully or not. We need to watch out. Let’s start now.

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Not quite done with Bozeman yet

By Michael Becker | Published: June 30, 2009
This entry is part 7 of 18 in the series Bozeman Privacy Fiasco

Just when the City of Bozeman thought it had the pri­vacy fiasco taken care of — and just when I thought the issue was set­tled and we could move on — some­thing new crops up.

Late last week, a city employee sent an e-mail to Bozeman city com­mis­sion­ers, claim­ing that the expla­na­tion of city hir­ing pro­ce­dures the com­mis­sion­ers got dur­ing their June 22 meet­ing was inac­cu­rate. That expla­na­tion had told the com­mis­sion­ers that pro­vid­ing Web pass­words on a back­ground check form was vol­un­tary. The e-mail’s author, whose name was not given, said this was not the case, that the pass­words were tac­itly required from job applicants.

Now the city has announced an offi­cial inves­ti­ga­tion of its hir­ing prac­tices, the Bozeman Daily Chronicle reports. The com­mis­sion decided at a June 29 meet­ing that it will hire an out­side author­ity to con­duct the inves­ti­ga­tion, which will look into “how and when dur­ing the hir­ing process that city job can­di­dates were pre­sented with a waiver form ask­ing for their log-in codes, whether the can­di­date was told that pro­vid­ing the infor­ma­tion was vol­un­tary and how can­di­dates’ Web sites were reviewed,” the Chronicle said. The city will look into every new hire in the past three years, the alleged period dur­ing which the city asked for passwords.

Local CBS sta­tion KBZK quotes City Commissioner Eric Bryson:

“I want to know if there were dis­tinc­tions between the depart­ments. Were there stan­dards devel­oped for what was con­sid­ered appro­pri­ate con­tent on someone’s per­sonal page, how the appli­cants were told when the review of their sites would occur and for how long they could expect the city to access those sites,” Commissioner Eric Bryson said.

Seems like they’re more or less look­ing for the answers to the ques­tions I asked on day one, the ques­tions that remained mostly unan­swered even after the city closed the matter.

To me, though, this is the worst part. Again, from the Chronicle article:

In addi­tion, com­mis­sion­ers said they received another e-mail stat­ing that a city employee retal­i­ated against a cit­i­zen for crit­i­ciz­ing the hir­ing pol­icy. The employee told the citizen’s public-sector employer that the cit­i­zen was improp­erly using their offi­cial title on per­sonal correspondence.

Retaliation? Really? A city employee who felt threat­ened by crit­i­cism of a pol­icy goes ahead and ham­strings some­body who cared enough to point out the bad pol­icy? Come on.

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A look at a few tips Bozeman gives its job applicants

By Michael Becker | Published: July 1, 2009
This entry is part 8 of 18 in the series Bozeman Privacy Fiasco

What hap­pens when you apply for a job with the City of Bozeman? What is the city look­ing for in its job can­di­dates? What should those can­di­dates know before going in to the hir­ing process?

Thankfully, the city pro­vides a few point­ers on its HR Web site — things that peo­ple inter­ested in work­ing for the city should keep in mind. I’ll sum­ma­rize a few of the rel­e­vant items here. Text in bold indi­cates my empha­sis, not the city’s.

  • “It is extremely impor­tant to fol­low the instruc­tions found on the Position Vacancy Announcement, the Application, the Supplement Questions and any other appli­ca­tion mate­ri­als. Incomplete, late and/or unsigned appli­ca­tion mate­r­ial, includ­ing those which do not fol­low the instruc­tions, will NOT be con­sid­ered.”
  • “Equal Employment Opportunity: It is the pol­icy of City of Bozeman that the City does not dis­crim­i­nate on the basis of race, color, reli­gion, creed, sex, age, mar­i­tal sta­tus, national ori­gin, polit­i­cal ideas, or dis­abil­ity in employ­ment or the pro­vi­sion of ser­vices. This pol­icy does not pre­clude dis­crim­i­na­tion based upon bona fide occu­pa­tional qual­i­fi­ca­tions or other rec­og­nized excep­tions under the law.”
  • “The Montana Human Rights Act requires the City of Bozeman to make and keep records rel­e­vant to the deter­mi­na­tions of whether unlaw­ful employ­ment prac­tices have been or are being com­mit­ted. The City of Bozeman Equal Employment Opportunity Applicant Survey (attached to the appli­ca­tion) once com­pleted, will be sep­a­rated from your Application. The sur­vey infor­ma­tion will be kept con­fi­den­tial, used only for sta­tis­ti­cal reports and other law­ful pur­poses. The infor­ma­tion you and oth­ers pro­vide will be used to mon­i­tor the City’s recruit­ment and selec­tion prac­tices. This form is optional: fail­ure to com­plete this form will have no impact on any employ­ment decision.

It’s note­wor­thy that on its old back­ground check waiver — the form has since been updated to remove the field ask­ing for appli­cants’ pass­words and user­names — there was no indi­ca­tion that any of the fields on that form were optional or required.

As I have argued before on this blog, that log­i­cally implies that either the whole form is requires or the whole form is optional. You can argue with that logic if you like, but you can­not argue with the fact that the form had no instruc­tions on it, so how could the care­ful job appli­cant, who is told repeat­edly in city mate­ri­als to “fol­low the instruc­tions,” do so? If that poten­tial employee, lack­ing instruc­tions, did not fill out that form com­pletely, he or she was endan­ger­ing his chances for a job by hand­ing in an incom­plete form, which the city help­fully tells us is not a good thing to do.

I won’t com­ment on the Equal Employment clause. No one’s accus­ing the City of Bozeman of dis­crim­i­nat­ing against any appli­cant. The city is, instead, brush­ing up against charges of vio­lat­ing appli­cants’ right to pri­vacy under the Montana Constitution. However, access to another person’s social net­work­ing site user­name and pass­word could eas­ily pro­vide you access to infor­ma­tion about that person’s race, reli­gion, creed, age, sex, etc. — basi­cally all the infor­ma­tion that equal employ­ment says is out of bounds.

I’ll grant you that access to such infor­ma­tion doesn’t mean that the hir­ing com­mit­tee mem­ber will use that infor­ma­tion actively in deter­min­ing whether a can­di­date is fit for employ­ment. But that sort of infor­ma­tion, once read, is hard to for­get. Try as a com­mit­tee mem­ber might, there is no way to for­get infor­ma­tion com­pletely. Once a hir­ing com­mit­tee mem­ber has seen such infor­ma­tion about a job can­di­date, even if he or she swears they won’t use it, we have to con­sider that com­mit­tee mem­ber tainted.

Finally, there’s the Montana Human Rights Act. I don’t know much about this act right now, but I’m going to be read­ing it soon. It seems per­ti­nent to the dis­cus­sion at hand. I’ll return with more com­men­tary about the act soon.

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E-mails to City of Bozeman about privacy fiasco not yet available to the public

By Michael Becker | Published: July 2, 2009
This entry is part 9 of 18 in the series Bozeman Privacy Fiasco

This morn­ing, I went down to the City Clerk’s office to get copies of the e-mails that the City of Bozeman has received about its now-repealed pol­icy of using appli­cants’ social net­work­ing pass­words in pre-employment back­ground checks.

I knew the doc­u­ments were pub­lic record; City Commissioner Sean Becker said so dur­ing the City Commission meet­ing on June 29. So I went to the clerk’s office and asked for them. The assis­tant clerk was the only one in, and she quickly found two fold­ers full of pub­lic com­ments for the City Commission — not all dealt with the pri­vacy con­tro­versy, but most did.

She wasn’t sure whether she could make copies of the doc­u­ments, so she tried to call about a half dozen peo­ple and even went upstairs to try to find some­one who knew. She didn’t, so I agreed to wait until she had her answer to get copies of the doc­u­ments and asked whether I could just read through them at the office in the mean­time. She said that would be fine.

For about 15 min­utes, I sat in the City Clerk’s office going through the two file fold­ers — in the 32 e-mails I counted, 26 dealt with the con­tro­ver­sial pol­icy. Many of them were civil but dis­be­liev­ing. There were no really rude e-mails in those files.

The clerk said there was another file that con­tained all the e-mails that were sub­mit­ted anony­mously and that there was still some lin­ger­ing legal ques­tion about releas­ing those. She said those were the really nasty e-mails.

About 15 min­utes after I started, just when I had fin­ished scan­ning through the first folder of e-mails, a woman from the City Attorney’s office came in and said that the attor­ney had called in via cell phone and said that he didn’t want any of those e-mails made avail­able to the pub­lic yet — mean­ing that I could not even read them in the office, let alone get copies of them.

The rea­son given to me was that some of the e-mails could con­tain infor­ma­tion that would vio­late the pri­vacy rights of some city employ­ees. OK, but then why did Commissioner Becker say they were “pub­lic record” and why were they avail­able to view, for at least 15 min­utes, in the City Clerk’s office?

The attor­ney appar­ently told the woman that he wanted a writ­ten request for the doc­u­ments filed before they could be released. I left to com­pose that request.

I recounted my expe­ri­ence to my con­tacts at the local news­pa­per, who were of the opin­ion that a doc­u­ment made pub­lic should remain pub­lic. I agree, but I’ll play by the city attorney’s rules here. I sub­mit­ted my writ­ten request this after­noon. Since it’s a hol­i­day week­end, I don’t expect to hear back until next week, at least.

Don’t get me wrong, I’m not alleg­ing any wrong­do­ing here at all. If any­thing, the city is doing the right thing by pro­ceed­ing slowly on the mat­ter to make sure it has all its t’s crossed and i’s dot­ted, despite the incon­ve­nience it causes me.

I do hope, though, that this “con­cern that there’s some­thing in the doc­u­ments that could vio­late pri­vacy” (or words to that effect) doesn’t become a stan­dard prac­tice for keep­ing doc­u­ments away from the press and public.

I’ll write more when I know more or when I receive a response from the city.

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Update on request for documents from Bozeman

By Michael Becker | Published: July 6, 2009
This entry is part 10 of 18 in the series Bozeman Privacy Fiasco

I received word from Bozeman City Clerk Stacy Ulmen that her office is work­ing on my request for copies of the e-mails sent to the city dur­ing the pri­vacy fiasco. The e-mail says I should have the infor­ma­tion by the end of the week, if not sooner.

In other news, the City Commission will meet tonight and hear from City Attorney Greg Sullivan about the processes, scope and time­line of the city’s upcom­ing inves­ti­ga­tion into its hir­ing prac­tices. Another pre­sen­ta­tion on the city’s hir­ing process is sched­uled for Aug. 3 at 4 p.m.

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