Drawing the line for federal Webmasters
FCW's DotGov Thursday column offers a warning for federal employees, providing an overview of laws and policies that may come into play
A surprising number of laws come into play when developing World Wide Web pages, but some are more important than others.
A line should be drawn to indicate to Webmasters the threshold that cannot be crossed because the activities are prohibited by laws that carry provisions for damages or criminal penalities. When these laws come into play, take a moment to reflect.
Because there does not seem to be a mechanism in place to give federal employees an overview on new laws and policies, I have attempted to identify some that should be considered carefully by Webmasters (and federal employees in general):
Conflicts of Interest
Yes, Internet stocks are hot. But if you own stock in a company, you cannot be in a position to contract with that company. You must file financial disclosures, and you must excuse yourself from any contract action recommending the purchase of a product in which you own stock. When you leave government service, you are restricted as to what kind of relationship you can have with the federal government in terms of promoting your new employer's products and services to your former employer. There also are many restrictions to your participation in the political process.
The No Electronic Theft Act makes it a felony (in addition to carrying civil penalties) to reproduce or distribute 10 or more copies of copyrighted works that have a retail value of $2,500 or more. It is a misdemeanor when dealing with as few as one copy and a retail value of $1,000 or more. This law is why it is so important to have a Web policy in place and to assign the responsibility to the program offices for determining whether information is free of copyright. It also underscores the importance of maintaining an inventory of licenses.
The Electronic Communications Privacy Act makes it a crime to view other people's e-mail messages while in transit. This is sort of a wiretapping law for e-mail. System administrators may view e-mail messages only if it's necessary to operate or protect property. In all cases you have an obligation to maintain the privacy of the e-mail messages except to forward information as needed for an investigation.
Also, don't say in an e-mail message what you wouldn't want said in public. E-mail can be the source of libel or defamation. Use face-to-face meetings to discuss sensitive issues and to avoid misinterpretations that can often occur in e-mail.
The Federal Tort Claims Act requires the United States to be substituted as the party in a lawsuit instead of you for acts within the scope of your employment. The government is required to assist you with legal representation. However, sovereign immunity is waived for torts as defined by state law, which can include privacy and intellectual property rights. Also, criminal acts are excluded from the definition of "within the scope of employment." If you are faced with issues of criminal penalties, you will need to get your own lawyer.
Life and Property
Although I recommend using disclaimers about information provided on Web sites, when dealing with life and property an even higher duty of care is required that cannot be disclaimed. For instance, if you provide medical data or deal with processes that can affect the safety of the public, you will be held to a higher standard. There can even be criminal consequences for negligence when you have this higher responsibility. Get reviews by your legal office and involve the program offices to ensure the key bases are covered.
Improper use of money can get you into trouble fast with criminal and/or civil penalties. Unless you have legislative authority, you cannot accept funds from the public without safeguarding the funds and forwarding them immediately to the Treasury. If you are not sure if you can accept funds from the public, assume you cannot.
You cannot spend more money than what you have been given in your budgets. There are specific and personal liabilities for spending more funds than have been delegated to you. You cannot contract in anticipation of receiving money. If you need to contract for several years and you only have "one-year money," then the out years must be optional. Use credit cards only for the purpose for which they were given.
Assume no privacy when using electronic devices at work, including deleted files on your computer and the Web sites you visit. Your employer owns the equipment and space you use in the workplace. Agency policies sometimes allow incidental use of office equipment for personal purposes, such as calling home during the day. But the policy usually will state that you are not to assume privacy even if discussing personal issues when using work office equipment.
The Economic Espionage Act of 1996 makes it crime to steal trade secrets. Trade secrets can include manufacturing processes and even customer address lists.
Unless it is absolutely critical, I do not attend presentations from vendors that require me to sign a secrecy agreement. On the industry side, employment contracts and agreements address trade secrets and generally have anti-compete clauses and should be part of your assessment if you are considering employment in the public sector.
In closing, the same principles apply to employment in industry too. The grass is not greener, it is just different grass. Be cautious in both areas.
For examples of investigations involving violations of federal laws, go to the Web page of the NASA Office of Inspector General Investigations.
Kellett is founder of the Federal Web Business Council, co-chairman of the Federal WebMasters Forum and is director of GSA's Emerging IT Policies Division. He is a member of the bar for Washington, D.C., Maryland and Virginia.
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