Those who serve in government almost always have the very best intentions, but sometimes there are unintended consequences. When California attempted to keep energy prices low by capping how much utilities could charge for producing energy, they failed to anticipate that oil costs would rise or that firms like Enron would be able be able manipulate the price of power transmission. Or government tax credits for certain industries that unwittingly put others put of a job.
The ECM industry has been no different: when the IRS was first looking to scan tax returns members of Congress tried to be helpful by drafting a bill that would make images legal if they were stored on WORM optical disks. Unfortunately the bill was written in such a way that magnetic storage was specifically excluded. If not for some quick efforts by members of the AIIM Standards committee and other industry veterans, the well-intentioned efforts of Congressional staff would have severely limited the growth of the industry.
This time it is the Library of Congress who fails to understand the consequences as they launch a new effort to capture and store every "tweet" made on the popular Twitter social-networking and microblogging site. The mission of the Library of Congress is to capture information and make it available to Congress and the public. The vast majority of this information is in the form of copies of copyrighted books and maps. One can argue about whether odes of “<3 to Britney Spears” or Lance Armstrong's breakfast are relevant to future generations, but in today's world it could be the lawyers who benefit the most.
Copyright issues are one issue. Twitter’s terms of service explicitly states that users retain the rights to their tweets. The LOC itself might be able to make use of the tweets under the “fair use” sections of the copyright law, but one aspect is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”. Given that a tweet is limited to 140 characters it begs the question as to just how much of a tweet must be reproduced to be “substantial”. Since others are likely to make use of the LOC how are they to know which portions are copyright and which ones are not? LOC is part of the legislative branch of government and is therefore exempt from certain laws and FOIA requests, but Congress is sometimes reluctant to use “legislative privilege”.
The bigger issue is the fact that LOC may have copies of tweets that even Twitter itself does not have. Twitter provides the ability to delete an individual tweet and presumably LOC doesn’t have access to older deleted tweets, but for a user who posts a tweet now, how can they be sure that it is deleted (perhaps in accordance with their records management policy) before LOC has a copy? LOC puts themselves in the awkward position and being a more “trustworthy” repository of tweets that Twitter itself. For lawyers, that is a potential goldmine of discoverable records. Most of the government lawyers I talked to and worried that LOC isn’t anticipating what might happen. For individuals and companies who want to be able to control their tweets, LOC’s policies might make them less likely to use the popular service.
Imagine a divorce trial where a spouse wants to find incriminating tweets. Today they might go to Twitter, but smart attorneys will likely go to LOC because they may find the deleted tweets. The first Twitter ediscovery lawsuits have already begun and an increase in discoverable tweets is a certainty. Even though the LOC isn’t a party to the lawsuit, they will still potentially incur costs associated with the discovery request. LOC may yet take additional steps to resolve these issues, but it still serves as a reminder that good intentions can still have unexpected costs and results.
Such a scenario isn’t without precedent: the Office of Federal Housing Enterprise Oversight (OFHEO) was subpoenaed in a class action lawsuit against Fannie Mae and the other agencies that OFHEO regulated. An appeals court upheld a lower court’s finding of contempt for not being able to find all the records, despite spending $6M in discovery costs. But the costs represented a whopping 9% of the small agency’s entire annual budget.
Without question the LOC has good intentions and is following smart politics to be more relevant in this digital age. LOC’s policies for Twitter have not been fully published so there is likely to be some refinement and thought that goes into the project. Regardless, the next few years will be interesting to see whether the public or the lawyers are the ultimate beneficiaries.
#tweets #records #ElectronicRecordsManagement #Congress