Staffer e-mails are not private property

Members of Congress are many things to their staff: boss, mentor, friend. And, as the recent firing of Rep. Darrell Issa’s spokesman made clear, the lawmaker can be Big Brother, too.

Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, fired spokesman Kurt Bardella earlier this week, after looking over e-mails showing that Bardella had leaked e-mail correspondence with reporters to another reporter with The New York Times.

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Issa said he did not know Bardella had been sharing confidential correspondence with the Times reporter — it was only after the possibility was brought to his attention by a media report that Issa investigated his staffer’s e-mail account. But, according to government officials, the congressman could have looked into his staffer’s e-mail any time he felt it necessary.

“Members of Congress have access to all of the e-mail within an office, and I would advise staffers to use their own personal e-mail in order to send things that were not official business because they should know that the e-mail can be seen by the member or the chief of staff,” said Daniel Bennett, chief technology officer at the eCitizen Foundation.

Bennett was one of the pioneers who helped develop the House’s e-mail system in the 1990s, while working as technology liaison to Rep. Anna Eshoo (D-Calif.). He also served as president of the House Systems Administrators Association for two years, which helped staff figure out their new e-mail systems.

“As soon as there’s any whisper in any office of a staff member acting inappropriately through e-mail, I’m sure that the chief of staff or member of Congress would have that investigated,” he said.

Several congressional staffers told The Hill that, while they typically don't e-mail anything that could be misconstrued as inappropriate, they did not know that their e-mail could be viewed without their consent.

Moreover, there are no official rules governing when such snooping may take place.

Offices are advised to establish ground rules with staff that address their professional conduct, including phone decorum, press relations and proper use of e-mail. But they are not required to do so, and many operate on an unstated rule of professionalism, which varies between offices.

Every staff member has an e-mail account with their own password, but the office’s system administrator or the office of the House Information Resources, under the Office of the Chief Administrative Officer (CAO), can access any of these accounts. Even if staff members change their password, the system administrator has the ability to override that and access the account.

A spokesman for the CAO said its technological office can show a member the e-mails of their staff if they make an official written request. The CAO’s office would not disclose how many such requests have been made.

Bennett said that situations involving inappropriate e-mail are rare, and most often handled internally by the staff and the member.

When a situation might be illegal, it gets turned over to the appropriate authorities, whether it’s the Capitol Police, the House Sergeant at Arms or the Ethics Committee. For instance, when an office receives a death threat, the Capitol Police trace the e-mail’s sender, officials said.

But a gray area exists regarding when lawmakers should look at their staff’s e-mails and what privacy rights staffers have, if any. 

A former House chief of staff who worked on the Hill for more than a decade said he looked into the e-mail account of an intern once because there were allegations that the unpaid employee was sending inappropriate communications. The allegations turned out to be true, and the intern was fired.

“As a manager, when a staffer violates office policy, federal law or House rules, they forfeit certain privacy rights,” said the former chief of staff. “In some cases there may have been people that were harmed because of this. And so the office has an ethical responsibility to do a thorough investigation to ensure and protect the integrity of the office and the institution.”

Rep. Steve King (R-Iowa) said he’s never looked at his staff’s e-mails because he trusts them completely. But if something were to raise his suspicions, King said he’s not concerned about his staff’s privacy rights when it comes to e-mail.

“I’m not very sensitive about what people might claim about their privacy when they’re using the property that we’re using to advance the cause that we’re working on,” he said. “I swim in a fishbowl all of the time. My wife reads my e-mail all the time. I don’t have anything to hide, and they shouldn’t either.”

The chairman of the House Administration Committee, Rep. Dan Lungren (R-Calif.), said that he’s never been inclined to search through his staff’s e-mail and wasn’t familiar with the process he would have to go through to do so.

In addition, the House does not have any official policy about what can’t be sent over e-mail, aside from following federal laws and House rules, including ethical guidelines.

Lillie Coney, the associate director with the Electronic Privacy Information Center, advised lawmakers to write up their office’s official policy on appropriate e-mail correspondence.