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HomeMy WebLinkAbout06232010WorkshopCity Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Don Wright Absent: Council Member Eugene Wolff CM' OF HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES WORKSHOP WEDNESDAY, JUNE 23, 2010 5:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Gillmor called the Workshop to order at 5:00 p.m. 2. The Pledge of Allegiance was recited. 3. ROLL CALL Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Records Program Manager, Donna Cyr Growth Management Director, Rebecca Grohall Deputy Police Chief, Greg Witt Police Captain, Bob Lockhart MIS Senior Systems Analyst, Barbara Brooke -Reese MIS Systems Analyst, Robb Messersmith City Council Workshop June 23, 2010 Page Two 4. WORKSHOP ITEM 10.103 A. Paperless Agenda Packets 3 -9 i. Discuss Pros and Cons of Various Methods (Clerk/MIS List) The City Clerk gave a brief presentation on using PDF agenda packets in an effort to go paperless for those who wish to, and explained various hardware systems that could be utilized to view the packets at home and at meetings. She reiterated staff recommendation that Council utilize City provided hardware to provide ease of uploading software and ability to download public records stored on the hardware, though she stated it is just a recommendation and staff would provide whatever hardware each member requested within reason subject to available funds in the current budget. She said the City Attorney would give a brief update on electronic records law, and then staff would assist Council with viewing the hardware setups at the dais prepared by MIS staff. She asked that Council discuss and provide some direction to staff following the demonstration, and in keeping with that direction staff will attempt to make it ready for the July 14 agenda. 11 -43 ii. City Attorney Brief Update on Electronic Records Issues E -Mail, Text, Social Networks (State Electronic Recordkeepinq Strategic Plan, City Internet/E -Mail Policy, City of Venice Documents, AGO) 5:13 pm The City Attorney gave a brief update on electronic records law. He said public meetings have to be in compliance with the law, and though laws haven't changed, the way we communicate has changed, and technology has really out scripted with how laws apply to us. He said there have been all kinds of laws and opinions determined and he provided copies of information he received at a conference. (attached) He said he didn't want anyone to inadvertently violate the sunshine law by pressing the delete button. He said the Sunshine Law applies in very strange ways and gave a recent example where a judge became "friends" with someone on facebook and discussed a case with litigants. He said in addition to state law; there are federal laws, in particular the Digital Millennium Copyright Act, Communications Decency Act, Rights of Privacy, Communications Act, and the Americans with Disability Act which obligates the City to provide electronic information to those who don't have computers. He asked Council to keep in mind it is possible to trip themselves up with the simple use of technology and to be aware the laws prohibit things that people like to do everyday like e- mailing one another. He cited the Attorney General Opinion identifying public records which he had previously distributed and closed with saying that depending on the route Council decides to go, he would advise them further. City Council Workshop June 23, 2010 Page Three Mr. Wright said he planned to view the agenda packet electronically and make private comments within the file or he could make written comments but since he isn't transmitting the comments to anyone, he asked if he would be violating any sunshine laws. The City Attorney said as an example, if he made notes on things he wanted to change, had car trouble on his way to the meeting, and forwarded the changes to the Mayor so he could request the changes for him, that would not be acceptable. Mr. Wright said he would relay his changes to the City Manager. The City Attorney said moving the files around so easily to other people is what concerns him. Mr. Hill suggested having the City Attorney meet individually with Council Members. Ms. Coy cautioned that anything written down becomes a public record. Mayor Gillmor said he liked the storage capabilities of a netbook or flash drive. iii. View and Test Various Methods at Dais w /Assistance of MIS Staff Laptop, CPU and Netbook Mr. Wright demonstrated the fixed CPU that had been installed at his seat with a switch to toggle between viewing the meeting and viewing the agenda packet PDF. He said he preferred to use this method and suggested members can download their packets from home with comments to a flash drive and then Toad it up at the meeting. He said the flash drives can also be provided to the City Clerk for public records requests. Mr. Messersmith outlined the cost for a CPU under the dais would be $50 -100 each for the switch, $10 -15 for the flash drives, and the City already has five used CPU's. Mr. Hill said he would prefer to use his own laptop; he has collected a month of packets on his laptop and provides them to the City Clerk monthly with his personal notes. He displayed his laptop to the other Council Members and suggested all of them use the same software format. iv. Council Guidance to Staff The City Clerk stated she does have monies available for individual laptops if that is what is chosen; which would be City property and supplied to them during their terms. City Council Workshop June 23, 2010 Page Four Riche illmor, Mayor ATT ST: A,Q.Cc m,a. rn mL J pu+y Cr-ky C -Jr p Se ly A. Maio, MMC City Clerk She noted the definition of a public record is any written communication that conveys information by a public official and said she would look to the City Attorney for advice. Ms. Reese said it would be possible to supply the software program PDF Exchange to each member. The City Clerk asked that each Council Member inform her or the MIS Department of their preference and they would try to have it available for them at the July 14 meeting. Damien Gilliams, 1623 US Hwy 1, said the debate sounded sinful that Council would make notes and people would make a public records request which shouldn't matter because what they are doing is in the best interest of the community. He asked if anyone checked into what the other cities are doing. The City Clerk said she had. 5. Being no further business, Mayor Gillmor adjourned the workshop at 5:52 p.m. Approved at the July 14 regular City Council meeting. I. Introduction A. Why Social Networking Media? B. Social Networking Media Typically Used by Local Governments 8.1 Submitted to City Council by City Attorney at their June 23, 2010 Workshop. Texts, Tweets and Facebook Friends: Public Records and Sunshine Issues When Social Networking Meets Local Government By Jeannine S. Williams Social networking media in general has become popular because people like information. There is no such thing as information overload. We have become accustomed to instant and infinite access. As the landscape of the Internet and the way citizens communicate and obtain information online continues to evolve, local governments are using social networking media as a tool to reach a broader audience. Some of the benefits of social networking for local governments include: (1) direct means to contact citizens; (2) speed and flexibility in delivering messages to citizens; (3) two -way communication to engage citizens in discussion on imminent issues; (4) the ability to provide emergency communications instantly; and (5) the availability of constant contact with an interested audience for advertising and marketing purposes. Some of the challenges that may arise include Government in the Sunshine requirements; Public Records Law requirements; assumptions about certain postings constituting official City positions on a subject; accessibility requirements; and monitoring content posted by citizens. A local government must perform a cost/benefit analysis to determine whether the use of social networking media is warranted. Facebook is the most popular social networking site in the world. If Facebook were a country, it would be the fourth largest country in the world. To date, the site has more than 300 million users. Users stay current with friends and colleagues via messages, status updates, blog posts and photo galleries. Users can establish contacts as "friends" who are privy to their page and personal information. Facebook provides one of the most efficient and free services to stay connected with friends and meet people with similar interests. Another successful free social networking site is Twitter. This site provides a mini blogging service. Users set up profiles, add "followers," and then send messages to their followers. The 140 character mass messages to followers, called "tweets," vary in purpose from announcements to questions and answers. Tweets can be passed along and replied to creating a string of tweets on a given issue. YouTube is another popular website that enables users to upload and share videos. On this site, users can create a profile, upload videos, and other users can save them as favorites, comment on them and share them with even more users. Texting is a service provided by cell phone carriers. A message can be typed by using a cell phone key pad and the type written message is transmitted to another designated cell phone user. II. Public Records and Sunshine Laws: The Basics A. Public Records The Public Records Law, Section 119.011(12), Florida Statutes, defines "public records" to include: all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. The Florida Supreme Court has interpreted the term "public records" to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate, or formalize knowledge. See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). All materials, whether or not they are in final form, are open for public inspection, unless the materials fall within a statutory exemption. See Wait v. Florida Power Light Company, 372 So. 2d (Fla. 1979). It is the nature of the record created rather than the means by which it is created which determines whether it is a public record. See Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4 DCA 1982) (stating that information stored in a public agency's computer is as much a public record as a written page in a book or a file in a filing cabinet). Therefore, computer records are subject to the law. See Op. Att'y Gen. Fla. 91 -61 (1991) (computer data software disk is a public record). See also Op. Att'y Gen. Fla. 08 -07 (2008) (concluding that the posting of comments relating to city business by a city commissioner on a web page which he maintains would be subject to the Public Records Law even though it was done on a privately owned computer). B. Sunshine Law Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, is codified in Section 286.011, Florida Statutes. The Sunshine Law, which provides access to governmental proceedings, has three basic requirements: (1) meetings of public boards or commissions must be open to the public; (2) reasonable notice of such meetings must be given; and (3) minutes of the meetings must be taken and promptly recorded. The Sunshine Law is equally applicable to elected and appointed boards. The law applies to any gathering, whether formal or informal (there is no requirement that a quorum be present for a meeting of members), of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. The law extends to the discussions and deliberations as well as the formal action taken by a public board or commission. 8.2 The Florida Supreme Court has stated that the Sunshine Law is to be construed "so as to frustrate all evasive devices." See Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). Members of a public board may not use computers to conduct a private discussion among themselves about board business. See Op. Att'y Gen. Fla. 89 -39 (1989). Additionally, where a public board or commission has delegated its policy making authority to staff members, meetings of those staff members are subject to the Sunshine Law. See Wood v. Marston, 442 So. 2d 934 (Fla. 1983). Therefore, when staff performs in such a capacity (even through social networking media), actions taken by staff may be subject to the Sunshine Law. III. Social Networking Media Issues A. Attorney General Opinions e -d7 AGO 2009 -19. See generally, Ops. Att'y Gen. Fla. 09 -19 (2009). Application of Public Records Law In determining whether a city's Facebook page would fall under the purview of the public records law, the Attorney General stated that the placement of information on such a page would communicate knowledge as contemplated in the Public Records Law. The Attorney General opined that the determination as to whether information constitutes a public record will depend on whether such information was made or received in connection with the transaction of official business by the city. The opinion provides that since municipal funds must be used to further a municipal purpose, there may be a presumption that material placed on a city's social media page relates to the transaction of official business. In any given instance, however, the determination would have to be made based upon the definition of "public record" contained in section 119.011, Florida Statutes, as defined by the courts. The opinion cautioned that a city which establishes a Facebook page should post a warning regarding the application and implications of the Public Records Law. For example, §668.6076, Fla. Stat. (2009) requires any agency or legislative entity that operates a website and uses electronic mail to post the following statement in a conspicuous location on its website: Retention Under Florida law, e -mail addresses are public records. If you do not want your e- mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. Section 257.36(6), Florida Statutes, provides that a "public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division." The Attorney General explained that his office previously found that public records on a website maintained by a city council member that related to the transaction of city business was subject to the city's policies and retention schedule regarding city records. See Ops. Att'y Gen. Fla. 96- 34 (1996). 8.3 The opinion states that to the extent information on a city's social media page constitutes a public record, the city is under an obligation to follow the public records retention schedules established by law. The General Records Schedule GS1 -SL for State and Local Government Agencies states that "[a]ll Florida public agencies are eligible to use the GS1 -SL, which provides retention periods for the most common administrative records such as routine correspondence and personnel, payroll, financial, and legal records." General retention schedules, including GS1 -SL, are available at http: /dlis .dos.state.fl.us /recordsmgmt/gen records schedules.cfm. The opinion cautioned that questions relating to the applicability of a retention schedule or retention of a specific record should be referred to the Division of Library and Information Services in the Department of State. Privacy and Public Records The opinion concluded that there are no privacy rights that will trump the public's right to see public records. Article I, Section 23, Florida Constitution, provides: Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. Florida courts have determined that no federal or state right of privacy prevents access to public records. See, e.g., Michel v. Douglas, 464 So. 2d 545 (Fla. 1985) and Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). A Florida court has found that "neither a custodian of records nor a person who is the subject of a record can claim a constitutional right of privacy as a bar to requested inspection of a public record which is in the hands of a government agency." See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991), appeal after remand, 619 So. 2d 983 (Fla. 5th DCA 1993). Therefore, the Attorney General found no privacy issues with release of public records which are not exempted. Application of Sunshine Law The Attorney General also opined that communications on the city's social media page regarding city business may be subject to Section 286.011, Florida Statutes (Sunshine Law). The opinion reiterated a previous opinion in which the Attorney General concluded that the use of a website blog or message board to solicit comment from other members of the board or commission by their response on matters that would come before the board would trigger the requirements of the Sunshine Law. See Ops. Att'y Gen. Fla. 08 -07 (2008). The Attorney General explained that while there may not be a prohibition against a board or commission member posting comments on a city's social media page, members of a board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action. 8.4 AGO 2008 -07. See generally, Ops. Att'y Gen. Fla. 08 -07 (2008). Application of Public Records The Attorney General opined that the postings and emails of a city council member relating to his public duties would be public records subject to the provisions of the Public Records Law. In determining who would be responsible for production, the opinion discussed two Florida cases. In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the Fourth District Court of Appeal considered who was responsible for responding to a public records request. The court concluded that regardless of whether or not the designated custodian was served with a records request, section 119.07(1)(a), Florida Statutes, imposes a duty of disclosure upon every person who has custody of a public record. The court subsequently clarified who is considered to have custody of a public record in Mintus v. City of West Palm Beach, 711 So. 2d 1359, 1361 (Fla. 4th DCA 1998), finding that in order to have custody of a public record, one must have supervision and control over the document or have legal responsibility for its care, keeping, or guardianship. The opinion explained that the records custodian is the person designated by the agency head to perform the responsibilities imposed by Chapter 119, Florida Statutes, as well as any other person who has legal control over the records. Addressing the instant case, the Attorney General opined that the public official with control over the records is the city council member who creates and posts the comments on the website. Since the records are public records as they are related to the transaction of city business, such records are subject to the city's policies and retention schedule regarding city records. The opinion stated that the individual council members who create the public documents through the posted comments and emails would be responsible for ensuring that the information is maintained in accordance with the Public Records Law and the policies and retention schedule adopted by the city. Application of Sunshine Law The opinion explained that the use of a website blog or message board to solicit comments from other members of the board or commission on matters that would come before the board would trigger the requirements of the Sunshine Law. The Attorney General opined that such action would amount to a discussion of public business through the use of the electronic format without appropriate notice, public input, or statutorily required recording of the minutes of the meeting. Additionally, even if comments are not solicited, any subsequent postings on a website by other commission members on the subject of the initial posting could be construed as a response which would be subject to the Sunshine Law. The Attorney General referenced a previous opinion that found that members of a commission may exchange documents that they wish other members of the commission to consider on matters coming before the commission for official action, provided there is no response from, or interaction related to such documents among the commissioners prior to the public meeting. See Ops. Att'y Gen. Fla. 07 -35 (2007). However, he reiterated that if the commissioners intended to exchange individual position papers on the same subject, to the extent that any such 8.5 communication is a response to another commissioner's statement, there may be a violation of the Sunshine Law. See id. The Attorney General acknowledged that there is no statutory prohibition against a city council member posting comments on a privately maintained electronic bulletin board or blog and that there is no statutory prohibition against a city council member serving as the webmaster of such a site. The Attorney General then explained that members of a board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action through these means. The Attorney General stated that the use of electronic means to post comments and the inherent availability of other participants or contributors to act as liaisons would create an environment that could easily become a forum for members of a board or commission to discuss official issues which should be conducted at a public meeting in compliance with the Government in the Sunshine Law. The Attorney General cautioned that "it would be incumbent upon the commission members to avoid any action that could be construed as an attempt to evade the requirements of the law." AGO 2006 -30. See generally, Ops. Att'y Gen. Fla. 06 -30 (2006). The Attorney General opined that in response to a public records request, a city may provide access to a large number of records by establishing a static website that the requestor may access, provided both the city and requestor agree. This production method relieved the city of duplicating thousands of pages of public records while allowing the requestor to obtain these records without incurring increased costs. B. Case Law City of Ontario, et al v. Quon, (writ of certiorari granted). See 130 S. Ct. 1011 (2009). In this pending appeal, the United States Supreme Court will address the privacy of text messages sent on employer -owned devices. The case is an appeal from a Ninth Circuit Court of Appeals ruling. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). The Ninth Circuit held that the Ontario (California) Police Department violated an officer's privacy rights by examining an archive of text messages on his city- issued cell phone. The court held that an employee's right to privacy outweighed the public employer's right to audit text messages sent from its employer- issued pagers. The Supreme Court is expected to issue a decision this summer. It will be interesting to see if and how this decision affects state public records laws and the ability of a local government to examine messages for purposes of complying with such laws. Please see the article which follows this brief outline for a more detailed discussion of applicable case law and statutes as it relates to this new area, social networking media (interne media). The article, initially published in the December 2009 edition of The Florida Bar Journal, is a great resource. It is reprinted here with the permission of the author. 8.6 IV. Conclusion In light of the Public Records and Sunshine Laws, public employees and officials should exercise commonsense and discretion when texting, posting a comment on Twitter, or sending a message via Facebook. Elected officials in particular should be extremely cautious when posting on social media. Whether information is considered a public record is a case -by -case inquiry that requires consideration of several factors including: (1) who created the record; (2) who had control or access; (3) the nature of the information included in the record; and (4) whether the record was created or used in the course of conducting government transactions. Posts on Facebook, tweets, text messages and e -mails made in connection with the transaction of official government business are subject to disclosure unless exempted. If information is subject to an exemption, posting on social media could waive some exemptions and privileges. The best advice is to not discuss any information that may be exempted via social media or email, if possible. Examples of how online exchanges can become subject to the Sunshine Law include: commission members with mutual friends on Facebook leaving comments to the same friend about a redevelopment deal; text messages between city council members discussing upcoming agenda items, or Twitter posts between board members regarding their positions on upcoming votes. Additionally, information transmitted from home through a personal computer via a private Internet account can become public records if the information relates to government business or an official or employee maintains the information in the performance of public duties. Local governments face challenges in maintaining records of the comments made by an official or an employee regarding official business on social media because a third party maintains the information. For many governments, public record custodians responsible for retaining and disclosing public records include each public official or employee who creates or has control over the public record. This is why it is important for governments to exercise some measure of influence over when, what, and how government officials and employees use social media. As this area is relatively new, many social media policies for local governments are still under development. One way for a local government to exercise some control over public records created through social media is to provide, and require use of, dedicated cell phones and e -mail addresses for officials and employees. There are ways to forward Facebook messages and Twitter posts to a designated email. Once the information has been forwarded, the official or employee can respond through the official email address instead of through the social media host. These actions would allow some control over the records for these types of communications. Another means to control such information is through automated archiving. The federal government has put together a draft request for proposal for an automated archiving process for social media. Perhaps such requests for proposals are in our future as well. Alternatively, in -house information technology departments of local governments may be able to create software to archive the information as well. One thing is for sure, social media policies and procedures will remain a work in progress as technology continues to evolve. 8.7 Liability Protection Digital Millennium Copyright Act Catch the Tiger by the Tail: Counseling the Burgeoning Government Use of Internet Media by Carl E. Brody, Jr. The phenomenon of Internet media has grown exponentially over the past decade, and local governments are beginning to take advantage of the benefits of social networking. Internet media, as the term is used in this article, consists of Web sites operated by governmental entities or elected officials. This definition includes public Web sites, social networking Web sites initiated by agencies of a public body or the public body itself, such as Facebook, Twitter, and YouTube; and Weblogs (more commonly known as blogs) maintained by the public body or any of its agencies. Through Internet media, local governments and their agencies are able to advertise, market, provide notice to constituents, and provide information to residents and nonresidents worldwide. Elected officials are also employing these new media as a way to interact more directly with the public and promote their individual political positions. Overall, both elected and governmental officials are outpacing legislative ability to create standards and protections for use of these new forms of communication, making it easy for users of this technology to inadvertently create liability for themselves and their agencies. The power of this technology assures that liability and compliance concerns will need to be addressed by government attorneys now and in the foreseeable future. As such, this is the time to begin understanding the unique legal issues relating to social networking through Internet media. The federal government was proactive in predicting the meteoric development of Internet media and the potential for liability issues to arise through the use, both private and public, of this vehicle. As such, it enacted two primary provisions to address these concerns: 1) 17 U.S.C. §512 and 2) 47 U.S.C. §230. In 1998, Congress passed the On -Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect Internet service providers (ISP) from being held liable for the actions of their users. The service provider designation in the act applies to both primary and secondary providers so long as the ISP is not responsible for the posting of infringing material. A primary provider is an ISP that creates a Web site that interacts with the public and allows public comment or posting, whereas secondary providers use outside Web providers, such as Facebook, YouTube, or Twitter, in order to network. The Digital Millennium Copyright Act (DMCA) protects both categories of provider when the potentially infringing content is posted by a user without modification of the content by the ISP. The intent is to allow providers protection from the misdeeds of others in order to foster the free and open exchange of information on the Internet. Therefore, the DMCA fairly apportions blame to the person or entity that is actually responsible for infringing on the copyright through an Internet posting. Strict compliance with the terms of §512 is required in order to retain the protections of the act. 8.8 Title 17 U.S.C. §512(a) limits the liability of service providers from copyright infringement challenges based on the provider's transmitting, routing, or providing connections for material through its system or network, but only if the transmission was initiated by a content user and automatically transmitted to the Web without selection of recipients of the material, without making a copy that is retained, and without modification of the material. What this means in the real world is that where a governmental body operates an Internet media site that allows users to view and post comments, it will not be found liable for the content provided by a user, so long as transmission of the content is automatically released by the provider's computer system. This will afford protection in almost all social networking circumstances since the purpose of these applications is to be open and interactive with outside users. Provider computer systems automatically release content consistent with the legislative intent of allowing open and free discourse through the Internet. Alternately, an ISP may block responses and postings by outside users, but this option is inconsistent with the reason for social networking and, though it may cure potential copyright claims, it is not consistent with the desires of local governments to create open and robust social networking. Further subsections of §512 expand Internet media protections, but the exemption does not apply where the service provider has specific knowledge that certain content on its site infringes the copyright of another and takes no action to remove this material. Consistent with this latter restriction, there is no liability to an ISP for removing user content if that action is taken in the good faith belief that the content violates copyright. On the other hand, if the Web content is provided by a subscriber, the ISP must take the extra step of providing notice of the removal. Subscribers must also be informed of the ISP's policy prohibiting repeat infringers. Subscribers receive extra protection because they are essentially secondary providers and may not be directly responsible for postings made by their users which affect the primary provider. Finally, an ISP must maintain a designated agent to receive claims of infringement, which can be satisfied by including basic information of a contact person on the Web site. To protect providers from potential liability for removal of content, as directed above, any misrepresentation that material is copyright protected when it is not violates the act and subjects the violator to damages, costs, and attorneys' fees. Assertion of this provision is similar to frivolous lawsuit prohibitions. The actual application of the act is currently under review by the courts, but some basic outlines and standards have been set. For example, in Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004), the court determined that an ISP would receive copyright protection under §512 as long as it complied with the requirements of subsection (i). In order to satisfy this requirement, the ISP needed to have a policy in place to address copyright violation claims. The defendant in Corbis attempted to comply with this mandate through use of a participation agreement setting forth guidelines for use of the site and prohibiting material from being posted that the user knew to be in violation of copyright law. Plaintiff claimed that the basic language provided by the defendant, Amazon, was vague. However, the court disagreed, holding that even vague language was sufficient to satisfy the statutory standard, as Congress was not specific in drafting the provision and, as such, intended for service providers to have some measure of leeway in protecting themselves through the exemption. For this article's purposes, this means 8.9 that so long as a government ISP provides language similar to Amazon's participation agreement and obtains acknowledgment from the user forbidding the downloading of copyright protected material, the §512 protections will remain in place." Based on this interpretation, a disclaimer including the requirements set forth in subsections (c)(2) and (i) of the act, should be sufficient to satisfy the demands of §512. The courts have also addressed the question of how a complaint for copyright infringement is raised. Subsection (c)(3) of §512 provides two basic requirements: 1) notice to the ISP of the copyrighted work that has been infringed and is currently being displayed on the provider's Web site; 2) and a good faith belief that the display constitutes an infringement. The notice requirement is straightforward but very specific. Notice will be satisfied only upon sufficient information being provided the ISP to identify the complainant and material allegedly being infringed. Failure of a complaint to strictly comply with these requirements will allow an ISP to ignore the complaint. The good faith element of (c)(3) has been interpreted to apply a subjective standard based on the complainant's belief that the displayed material infringes on his or her copyright, but the complainant must do more than just identify the allegedly infringing material. After receipt of the good faith complaint, the provider must move to terminate and remove the allegedly infringing material. Prompt removal will retain immunity, even if it is later determined that the removal was in error. As long as the provider informs the subscriber whose material was removed, there will be no liability to the ISP. Section 512 provides full immunity for local government ISPs, but strict compliance with its rules is required. To retain these protections, a local government must create written policy statements consistent with §512(c)(2), (g)(2) and (3), and (i). It must also include a disclaimer section on the Web site that at least recognizes the ISP's compliance with §512 and requires the user or subscriber to acknowledge its awareness and agreed compliance Finally, members of the public body designated to manage the Web site must be trained how to respond to complaints in compliance with the act. Taking these three steps will assure that the liability protections of §512 are retained. The Communications Decency Act In the landmark decision, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the U.S. Supreme Court held that portions of the Communications Decency Act (CDA), 47 U.S.C. §223(a) and (d), violated the First Amendment right to free speech. However, the lesser known 47 U.S.C. §230, which provides general liability protection for service providers, was not challenged, and it remains in effect today. Section 230(c)(1), better known as the "Good Samaritan Law," provides immunity for ISPs publishing material on the Web.' The Good Samaritan provision exempts service providers from liability for information posted on its site by users or for any action taken in good faith to restrict access to obscene, lewd, or otherwise objectionable postings. This exemption extends to preempt all state and local laws that may be in conflict with the act.' 9 Excluded from protection, though, are challenges based on intellectual property rights. The CDA distinguishes between "interactive computer services," which are ISPs that allow access by multiple users, and "information content providers," which are ISPs that retain 8.10 responsibility for the creation or development of information provided through the Internet. The former receives the exemption because it lacks the necessary control element, while the latter is unprotected. Local government sites can fall under either category depending on their level of direct control over content posted on their site. Therefore, this is the first issue that needs to be addressed when reviewing a social networking site. In Doe v. Sexsearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), an Internet user sued an Internet dating service after he was introduced to and had sex with an underage partner resulting in criminal proceedings against him. The plaintiff's challenge on several tort and contract grounds was based on the fact that Sexsearch.com warranted that the participants on the Web site are all 18 years or older. In its analysis, the court noted that a Web site such as Sexsearch.com may simultaneously be both an interactive computer service and an information content provider. The critical issue in making this determination is whether the site "acted as an information content provider with respect to the information that [plaintiff] claim[s] is false. Based on the facts before it, the court found the §230 exemption applied because even though Sexsearch.com reserved the right to modify the content of profiles on its site, plaintiff did not allege that it specifically modified the profile at issue and, therefore, the control element was missing. This distinction allowed the site to retain its designation as an interactive computer service. The next issue courts examine is whether an ISP operates as only a publisher or speaker, because the exemption applies only to those categories. Barnes v. Yahoo! Inc., 570 F.3d 1096 (9th Cir. 2009), involved a situation where an estranged boyfriend posted nude pictures of his ex- girlfriend on the Yahoo membership directory. The plaintiff followed Yahoo's procedure in attempting to have the pictures removed, but over a period of the next six months she was unsuccessful, and the pictures remained, along with personal information, which allowed viewing strangers to contact her. During this six -month period, the plaintiff did receive assurance from an employee of the company that the post would be removed, but that action was never taken. Barnes filed a complaint based in two state tort law theories of negligent undertaking and breach of contract. Yahoo responded with motions to dismiss raising its immunity claim under §230. The Ninth Circuit, in reviewing the matter, focused on the question of when a plaintiff's theory of liability would treat an ISP as a publisher or speaker. Examining the definition of the term "publisher," the court determined that all acts of removing content from the site were consistent with that general definition, therefore, §230 immunity applied. Conversely, the court found that Yahoo may not receive immunity under Barnes' breach of contract theory based on the failure of the Yahoo employee to follow through on a promise to remove the offending material, as this promise was not consistent with the act of publishing or speaking. As the issue was not fully considered by the district court, the Ninth Circuit made no ruling except to remand. This case provides an object lesson, though, for practitioners in warning clients not to correspond directly with users or other third parties regarding actions that will be undertaken by the government ISP on their behalf, else they may be deemed to be acting outside of their role as a publisher or speaker and not receive the protections of §230. The rule to be gleaned from this immunity statute and case law is to retain the limited role of a "publisher of an interactive computer service" status. Current technology allows for a service 8.11 provider to maintain an arm's length approach to the day -to -day operation of Internet media, thereby supporting application of immunity as the control over content element is missing. Simultaneously, the provider must comply with the removal provisions of the act in order to retain the "publisher" role. Creating policy in compliance with these limits will assure that the protections of §230 remain in place. Compliance with State and Federal Law Though the realm of Internet media is evolving at light speed, it remains tethered to statutory laws that have been around for decades. For the government attorney, this adds an extra layer of rules that must be complied with in order to adequately represent your client. Be forewarned, though, that state courts have yet to fully engage on subjects specific to local government requirements and, therefore, at times there is a need to extrapolate as to the application of state law to Internet social networking. Invasion of Privacy Florida law protects an individual's right to privacy under both Fla. Const. art I, §23 and F.S. §540.08. The Florida Supreme Court includes four distinct interests to be protected in the invasion of privacy tort: appropriation, intrusion, public disclosure of private facts, and false light in the public eye. These protected areas create a potential for ISP liability because §230(e)(2) of the CDA provides an exception to immunity for laws protecting intellectual property rights. The 11th Circuit Court of Appeals dealt with this question recently in Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006). Almeida involved a challenge by a woman who was photographed when she was a minor, with the consent of her mother, for an art exhibit. Photos from this exhibit were later published in an illicit book which in a second printing found itself being sold on the Amazon Web site. The plaintiff's attorney contacted Amazon demanding removal of the book and damages. Amazon responded by immediately removing the offensive material. At the district court level, Amazon successfully obtained dismissal based on the §230 exemption, but the appeals court did not subscribe to this analysis. Addressing the right of privacy, the court explained that the §230(e)(2) intellectual property law exception might annul the exemption and, therefore, focused on the nature of §540.08. After review, the court held that Amazon was not liable to Almeida because it did not use her image for trade, commercial, or advertising purposes as required by the statute. This is a critical distinction that must be carefully protected. Government generally will not be seen as operating for commercial or trade purpose. This basic inference should weigh heavily in favor of public bodies when defending against a §540.08 claim. Advertising, on the other hand, is more generic. Governmental bodies must carefully assure that self promotion does not inadvertently use an unauthorized image to advertise on their own behalf. Strict policies limiting the images posted by a government ISP for this purpose should be created. Only those images that have been previously approved by designated members of the government body should be used by the provider to protect this interest. A proper policy will protect the government ISP even where a user posts an image that may be subject to privacy rights protection because, as the Almeida 8.12 court noted, Florida state courts interpret §540.08 to require that the unauthorized use of an image "directly promote" the provider. Only where the government service provider appropriates the use of a person's image for its own promotion will the mandates of §540.08 apply. Therefore, in order to steer clear of any invasion of privacy violation, governmental bodies should create a policy to use only approved images and, upon receiving notice of an unauthorized use, immediately remove the subject material. Section 230 of the CDA will protect removal of the posted material, and §540.08 will validate that the images were not misused. Florida Government in the Sunshine The Florida Sunshine laws, F.S. §199 and 286, were created to ensure that citizens of Florida have access to government meetings and records. At the time of their creation, no specific consideration was made as to the effects of social networking Web sites and related interactive media. To date, little has been amended to address the unique aspects of complying with these rules in an Internet age, though the Attorney General has provided some interpretations of how the Sunshine Laws apply in this context. These matters also affect public sector attorneys' elected official clients more directly, which, of course, requires a different calculation as to the appropriate advice when compared to general local government specific advice. The first opinion regards the effect of a city council member serving as a private Web master. This scenario raises public meeting concerns as comments made by the council member via the Web site, if found to violate these laws, could void the action taken by the larger council, or at least prohibit the member from participation in the discussion and any vote on affected matters coming before the council. Strictly adhering to the mandates of §286, the Attorney General explained that regarding e- mails, so long as the information provided did not result in the exchange of comments between council members, no public meeting would result. Posting positions on a blog would undergo the same consideration. Conversely, regarding the public records status of these missives, the Attorney General opined that the council member's publicly posted comments relating to city business would be public records. Importantly, by creating this public record, the council member becomes responsible for responding to public records requests and retaining the record. This interpretation applies even when the e -mail or blog is undertaken privately. In coming to this determination, the Attorney General relied on two cases: Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), for the proposition that the duty of disclosure is placed on the person who has custody of the public record; and Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998), explaining that to have custody one must have supervision and control over the document. The attorney general, in an informal opinion dated June 2, 2009, refused to consider whether text messages sent or received by an elected official during a public meeting are public records. The Attorney General did not issue a formal opinion, but did cite to the language of the statute that designates all records connected to official government business as subject to §119. This focus suggests that the nature of the text message will determine its status as a public record. The medium used to transmit at this point seems almost irrelevant. Indeed, as to the initial factor for determining the status of a potential public record, the specific language of §119 provides that, "all...material, regardless of the physical form...or means of transmission," can be considered a 8.13 public record. This seems to be a direct mandate and should be expressed to elected official clients as such. Regarding social networking sites, the Attorney General has opined in a question from the City of Coral Springs as to the effect of a city sponsored Facebook page. In this opinion, the Attorney General explained that because the creation of a city Facebook page was for a public purpose and in connection with the transaction of official business of the city, information on the page was subject to §119. Those persons contacting the Web site would also be subject to the public records law if their contact was related to city business. This is a case -by -case decision that must be made based on the nature of the contact. It is a critical determination because private contacts remain private and not subject to the public records law even though they are on the city computer system. Similarly, any communication by city officials on the Facebook page would be subject to §286. As such, any response by a commission member to the statement of another would result in an illegal public meeting and subject the responding party or parties to potential liability. Finally, the Attorney General clarified that the Fla. Const. art I, §23 right of privacy would not be breached when the city is required to comply with a public records request that includes information from a nongovernmental official. Effectively, the attorney general interprets that public records law prevails over state constitutional privacy rights in this context. The overall direction regarding interpreting the application of the Sunshine Laws to new Internet media suggests that electronic communications will be treated identically to their old fashioned hard copy brothers. Therefore, both public employees and elected officials must be aware that written content created in any form will be subject to review under a traditional Sunshine Law framework. This raises the potential for inadvertently creating public records which must be made available to the public consistent with the requirements of §119. Similarly, elected officials must be wary of the contacts they make when using this new medium. A careless response or comment may result in a public meeting which has not complied with the necessary requirements of §286, thereby making any action taken on the matter void ab initio. Advising government clients of these risks and establishing policies to protect against breaches will go a long way toward assuring compliance with the Sunshine Laws. Elected Official Use Fla. Const. art. VII, §10 prohibits the state, counties, municipalities, or any agency thereof from using, giving, or lending its taxing power or credit to aid any private interest or individual. The purpose of this constitutional provision is "to protect public funds and resources from being exploited by assisting or promoting private ventures when the public would be at most only incidentally benefited. Similarly, SB 216, codified at F.S. §106.113 (2009), prohibits local government from expending public funds for political advertisements or electioneering communications. The nature of Internet social networking puts these provisions in a distinct new view. Most Internet networking created by elected officials is in some way intended to advance the private interests of the official in retaining his or her current position or for obtaining greater 8.14 support at the polls. In a vacuum, these interests are not in conflict with any requirements of law, but potential for conflict arises in an Internet networking context. Local government Web sites require public funds to be maintained. Therefore, any elected official desiring to link his or her Web site to the site of any public entity could potentially be in violation of Fla. Const. art. VII, §10 or F.S. §106.113 (2009), as arguably the elected official would be exploiting public funds for his or her own private benefit. Particularly in an election year where campaign material and messages will undoubtedly be promoted partially through networking sites, the risk for inadvertently violating these provisions is high. Federal Requirements The Stored Communications Act (SCA), 18 U.S.C. §2701, prohibits a party from intentionally accessing an electronic communication service and then obtaining or altering communications found therein without authorization. In the hard copy world, this rule is relatively obvious one is prohibited from accessing a person's file without authorization but in the Internet world, where there is no physical lock on the file drawer, the potential for unauthorized access increases. For example, in Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009), the Fourth Circuit reviewed a jury verdict for statutory and punitive damages against an employer found liable for accessing the personal e -mail account of a former employee, even though the account was on the company's computer system. Because the account originated from an outside service, accessing it from the home site or any other computer was in violation of the act and subjected the employer to a minimum $1,000 fine. The e -mails at issue in Van Alstyne were held in an electronic communications service, which is a service providing users the ability to send or receive electronic communications. As such, Yahoo, America Online, and other personal e -mail services are protected from outside access. Conversely, internal services of an employer may not be subject to this rule as they are not electronic communications services per the SCA. This distinction allows government employers to access their internal systems without fear of reprisal, but this action should be undertaken carefully and consistent with the internal rules of the governmental entity. The final holding of the Van Alstyne court is instructive, as it interpreted the SCA to require a plaintiff to prove actual damages in order to receive the statutory minimum damages award. On the other hand, punitive damages and attorneys' fees were held to be available to a plaintiff without proof of actual damages if the violation of the act is willful or intentional. As such, an Internet media policy must make employees aware of the potential liability created through the SCA under the above scenario. Local governments are also required to comply with the Americans with Disabilities Act (ADA), and if the government entity receives federal funds, §508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794(d). These mandates can be achieved by providing qualified individuals with disabilities equal access to programs, services, or activities via the Internet Web site. The only exception to this requirement allows noncompliance if compliance would fundamentally alter the nature of the provider's programs, services, or activities or would impose an undue burden. Alternatively, the government provider may employ an alternative process for providing 8.15 information to subject individuals regarding government programs or services, such as a staffed telephone information line. Unfortunately, these alternatives will not provide an equal degree of access in terms of hours of operation and the range of options and programs available as compared to Web site access and, therefore, their use should be limited and supported by the hardship standard referred to above. In order to come into full compliance with these rules, most attorneys will need the assistance of their client's Web developer or other information technology specialist. Providing alt tabs, long descriptions and captions, as well as posting alternate options for obtaining information posted on the Web site will go a long way toward compliance, as will a policy acknowledging that the site will be accessible. The U.S. Department of Justice (DOJ) provides several Web site links to assist local specialists with the technical aspects of complying with the ADA rules. 38 Following the directions provided by the DOJ in conjunction with a qualified technical expert should be sufficient to protect government clients from liability for noncompliance. Conclusion The new Internet media will be with us for the foreseeable future, and governmental entities will rightly desire to take advantage of the benefits inherent in the varied structures that are being created. Thus, now is the time to establish policies and procedures for governmental clients in order to ensure, to the best extent possible, that those individuals dealing with these media, either personally or on behalf of the government, are aware of their responsibilities and the potential liabilities that may arise from their acts. This is also the time to become more comfortable with the rights and protections that have been enacted to allow the free and open flow of information through the various media. Understanding the problems and protections that are implicated in this arena is the first step toward providing competent advice, but the public sector practitioner must remain engaged as the technology and cultural prominence of these media are continually advancing. Therefore, be aware and ready to adapt. 1 Digital Millennium Copyright Act, Pub. L. No. 105 -304, 112 Stat. 2877 (1998). 2 17 U.S.C. §512(k)(1). 3 17 U.S.C. §512(a) (2009); see Parker v. Google, 422 F. Supp. 2d 492, 497 (E.D. Pa. 2006) (noting that where an ISP automatically and temporarily stores data without human intervention so that the system can operate the necessary element of volition is missing for a copyright infringement claim). 4 17 U.S.0 §512(b) -(e) (2009) (providing protection for system caching, storage of content, linking, and acts of university professors or graduate teaching assistants, respectively). 5 17 U.S.C. §512(c)(1). 6 17 U.S.C. §512(g). 17 U.S.0 §512(i). 8 17 U.S.C. §512(c)(2). 9 17 U.S.C. §512(f), see Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004) (holding that plaintiff violated DMCA misrepresentation provision by attempting to shield noncopyright material from being posted on Web site through copyright claim). 10 Corbis, 351 F. Supp. 2d at 1100 -01. 11 Id.; see Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004) (The Ninth Circuit held that 8.16 the DMCA's infringement policy requirement has three prongs requiring a service provider to 1) adopt a policy that provides for the termination of service access for repeat copyright infringers in appropriate circumstances; 2) inform users of the service policy; and 3) implement the policy in a reasonable manner.). 12 Recording Industry Ass'n of America, Inc. v. Verizon Internet Services, Inc. 351 F.3d. 1229, 1236 (D.C. Cir. 2003); Perfect 10, Inc. v. CCBi1I, LLC, 488 F.3d 1102, 1112 (9th Cir. 2007). 13 See Rossi v. Motion Picture Ass'n of America, Inc., 391 F.3d 1000, 1004 (9th Cir. 2004). 14 See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008) (noting that copyright owner is required to consider any fair use doctrine defenses prior to issuing DMCA notice). 15 Jo Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1150 (N.D. Cal. 2008) (company policy to remove content within days of receiving DMCA complaint protected it from liability for publishing copyrighted material). 16 17 U.S.C. §512(g). 17 Until recently, immunity was thought to be limited to torts, specifically defamation and libel, but the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates. com, 489 F.3d 921 (9th Cir. 2007), aff'd en banc, 524 F.3d 1157 (9th Cir. 2008), in closely examining the language of the statute determined that immunity was absolute. 18 47 U.S.C. §230(c)(1) -(2). 19 47 U.S.C. §230(e)(3). 20 See Doe, 502 F. Supp. 2d at 723 -24 (plaintiff alleged 14 claims in both tort and contract). 21 Id. at 725, quoting Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006). 22 Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009). 23 Id. at 1102 -03. 24 Id. at 1103. "[T]he duty that Barnes claims Yahoo violated derives from Yahoo's conduct as a publisher. s Id. at 1106, et seq. 26 Allstate Insurance Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003). 27 Almeida, 456 F.3d at 1324. 28 Id. at 1325, citing Tyne v. Time Warner Entm't Co. L.P., 901 So. 2d 802, 808 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619, 622 -23 (Fla. 4th D.C.A. 1981). 29 AGO 2008 -07, Sunshine and Public Records Laws, Private Web site (February 26, 2008), http: /www.myfloridalegal.com/ago.nsf /Opinions /B4D 1320C99E9E532852573 FB00726034. 30 Mintus, 711 So. 2d at 1361. 31 AGO 2009 -19, Records, Municipal Facebook Page (April 23, 2009), http://www.myfloridalegal.com/ago.nsf/Opinions/25F 14F90483F3901852575A2004E46CB. 32 See State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003) (The court held that private e- mails on the City of Clearwater's computer system did not result in the creation of a public record.). 33 Michel v. Douglas, 464 So. 2d 545 (Fla. 1985). 34 Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). 35 See AGO 84 -103, citing Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971). Cf., Markham v. State Department of Revenue, 298 So. 2d 210 (Fla. 1st D.C.A. 1974); State v. Town of North Miami, 59 So. 2d 779 (Fla. 1952); Bailey v. City of Tampa, 111 So. 119 (Fla. 1926). 8.17 36 18 U.S.C. §2707. 37 US. v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003). 38 See U.S. Department of Justice, Accessibility of State and Local Government Websites to People with Disabilities, http /www.ada.gov /websites2.htm. This link will provide local government technology specialists with the information they need in order to alter the government Web sites as necessary to comply with the ADA. Carl E. Brody, Jr., is a senior assistant county attorney with the Pinellas County Attorney's Office, where he focuses his practice in First Amendment and communications law. This article is submitted on behalf of the City, County and Local Government Law Section, James L. Bennett, chair, and Jewel W. Cole, editor. 8.18