For obvious reasons, we are unable to share the name of the retired diplomat here but we have permission to share this with our readers.
Retired FSO: I was planning on blogging about Hillary’s emails. Title: “If I Did What Hillary Did, I’d Be In Jail.”
Me: Great! Looking forward to reading it!
Retired FSO: But I won’t.
Retired FSO: Just read 3 FAM 4170. I’m retired. I can’t believe I really need to clear my blogposts with PA. I mean, I’d use common sense, you know? I wouldn’t be divulging stuff like, say, our nuclear launch codes, or the chronically malfunctioning air conditioning system at Main State. I’d just focus on how when you become a charter member of America’s political elite, the rules don’t apply to you. That’s all.
Me: Only stuff “of department concern” needs clearance. Max timeframe for blogs, five days.
Retired FSO: But they’ve made me jittery. I don’t fancy jail. They’d probably force me to watch re-runs of “Madame Secretary” every day; let me read only the FAM! The eighth amendment doesn’t allow this kind of cruel and unusual punishment, but Mother State can be as vindictive as a Borgia dowager.
Me: Okay. So, does this mean you’ll stop blogging?
Retired FSO: Nah. Maybe I’ll just write about my pets from now on. Think anybody would read Diplo Doggy’s Adventures?
The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:
State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”
“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.
Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”
Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:
“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:
“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”
No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first. Before you say it. And hey, the agency will even help you clean it up, if needed.
When the ACLU defended Mr. Van Buren in 2012, it made the following argument:
The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efﬁcient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justiﬁcation when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identiﬁed harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.
In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170. The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach. We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside the building do not have legal standing to challenge these rules. So.
Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.
On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the “FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.
My! Look who’s covered!
The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications. The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):
— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).
— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.
— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.
In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.
Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.
Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?
Institutional interest vs. public interest
We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.
3 FAM 4176.4 says: “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”
Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:
Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.
Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits. But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy? And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?
The new regs also say this:
“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”
If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”
There goes the book, We Meant Well in Afghanistan, Also.
The Peter Van Buren Clause
We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review“ as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:
An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).
That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.
c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:
3 FAM 4176.2 (a) Content of Personal Capacity Public Communications
a. When engaging in personal capacity public communications, employees must not:
(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or
(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.
3 FAM 4176.2 (b) Content of Personal Capacity Public Communications
b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to:
(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material;
(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;
(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;
(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or
(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.
Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything. Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information. Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.
3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag
c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.
(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).
(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action
3 FAM 4176.1(e) General
e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.
3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers
a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:
(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via PAReviews@state.gov. The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and
(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.
b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:
(1) Contain classified or other protected information;
(2) Result in serious adverse consequences to the efficiency or mission of the Department; or
(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and
(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).
c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.
d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.
3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.
a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302
b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.
This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!
Oh, hey, remember the 2-day clearance for tweets …’er scandal?
We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual. Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4170
Yo! What’s Missing?
The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.
A Much Better FAM Version, Hey?
From the organizational perspective, some folks would say that this is a “much better” version of the FAM. We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”
Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:
The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”
The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.
Fun With Fido or Grumpy Cat
The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”
So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.
Updated 12/16/14 at 9:45 pm: We understand from the “R” shop that 3 FAM 4170 is in clearance now and something about “third time’s a charm!” What’s that about?
* * *
The December issue of the Foreign Service Journal includes a Speaking Out piece by FSO Wren Elhai, Twitter Is a Cocktail Party, Not a Press Conference (or, Social Media for Reporting Officers). The author is currently serving in the political-economic section of Consulate General Karachi. Prior to joining the State Department, he worked at the Center for Global Development, a D.C.-based think-tank, as a policy analyst where he also ran the Center’s Twitter and Facebook pages. Excerpt below:
This is a shockingly vague rule, one that I have been told in training covers even posting quotes from official State Department statements or links to articles that support U.S. policy. It is a rule so vague that any diplomat with a Facebook account will confirm that nearly every one of us violates it on a daily basis.
If you think of Twitter as the digital equivalent of a newspaper, then it makes sense to try to maintain control over what diplomats say there. However, if Twitter is a digital cocktail party, that’s an untenable position. No one would even consider asking diplomats to pre-clear everything they say to people they meet at public events—let alone to seek press office clearance before starting a conversation with a potential contact.
We are paid to know U.S. foreign policy, to present and defend our positions, and to not embarrass ourselves when we open our mouths in public. We are trusted to speak tactfully and to know what topics are best discussed in other settings.
Our policy should treat our interactions online and in the real world on an even footing. Yes, there will be rare occasions when diplomats speak undiplomatically and, just as when this happens in the real world, those diplomats should face consequences.
But just as we don’t limit ourselves to talking about the weather at receptions, we should be able to present U.S. policy and engage with contacts online. To meet people, we need to show up for the party.
On the topic of consequences, Sir James Bevan KCMG, UK High Commissioner to India recently gave a speech to a group of journalists that’s related to this, particularly on how one might be a bit boring on Twitter, and for good reasons:
And we diplomats sometimes have to behave a bit differently from you journalists, or at least have to pretend that we do. There are things which you can do and say which we diplomats cannot, lest we provide you with copy that is good for you but bad for us.
Some of you have said that my Twitter account @HCJamesBevan is a little bit boring. There’s a reason for that: I like my job and I want to keep it. For a diplomat, being too interesting on Twitter is the quickest way to get sacked. I like India and I want to stay here.
This past June, AFSA told its members that for more than a year it has been negotiating a revision to the current Foreign Affairs Manual regulations governing public speaking and writing (3 FAM 4170).
“As mentioned in our 2013 Annual Report, our focus has been to accommodate the rise of social media and protect the employee’s ability to publish. We have emphasized the importance of a State Department response to clearance requests within a defined period of time (30 days or less). For those items requiring interagency review, our goal is to increase transparency, communication and oversight. We look forward to finalizing the negotiations on the FAM chapter soon—stay tuned for its release.”
The June 2014 issue of the Foreign Service Journal includes an article, Publishing in the Foreign Service by FSO Yaniv Barzilai, who is serving in Baku on his first overseas posting. He is the author of 102 Days of War—How Osama bin Laden, al Qaeda & the Taliban Survived 2001 (Potomac Books, 2013). Below is an excerpt from that article with a prescription for the improvement of the pre-publication clearance process in the State Department.
There is plenty of room for improvement in the pre-publication clearance process. First and foremost, State must do a better job of adhering to the regulations it has set forth in the Foreign Affairs Manual. Anything short of that standard is unfair to everyone involved.
Second, the department should establish clear guidelines on how it distributes material internally and across the interagency community. That threshold should have nothing to do with terms as vague as “equities.” Instead, offices and agencies should have the opportunity to clear on material only if that material is the result of “privileged information”: information that employees acquire during the discharge of their duties that is not otherwise available.
Third, State needs to ensure that former employees receive treatment comparable to current employees. A significant gap exists between the attention given to current employees by PA and that former employees receive from A/GIS/IPS/PP/LA.
As that lengthy acronym suggests, former employees are relegated to an obscure office in the Bureau of Administration when they seek pre-publication clearance. In contrast, the PA leadership is often engaged and provides consistent oversight of the review process for current employees. This bifurcation not only creates unnecessary bureaucratic layers and redundancies, but places additional burdens on former employees trying to do the right thing by clearing their manuscripts. This discrepancy should be rectified.
These short-term fixes would go a long way toward improving the pre-publication clearance process for employees. In the long term, however, the State Department should consider establishing a publication review board modeled on the CIA’s Publication Review Board.
A State Department PRB would codify a transparent, objective and fair process that minimizes the need for interagency clearance, ensures proper and consistent determinations on what material should be classified, and reduces the strain on the State Department at large, and its employees in particular.
Ultimately, State needs to strike a better balance between protecting information and encouraging activities in the public domain. The pre-publication review process remains too arbitrary, lengthy and disjointed for most government professionals to share their unique experiences and expertise with the American public.
We totally agree that a publication review board is needed for State. Instead of parcelling out the work to different parts of the bureaucracy, a review board would best serve the agency. We have some related posts on this topic on the Peter Van Buren case as well as the following items:
The rules and regulations for publishing in the Foreign Service can be found in the infamous Foreign Affairs Manual 3 FAM 4170 (pdf). Last June, AFSA told its members that for more than a year it has been negotiating a revision to the current Foreign Affairs Manual regulations governing public speaking and writing (3 FAM 4170).
“As mentioned in our 2013 Annual Report, our focus has been to accommodate the rise of social media and protect the employee’s ability to publish. We have emphasized the importance of a State Department response to clearance requests within a defined period of time (30 days or less). For those items requiring interagency review, our goal is to increase transparency, communication and oversight. We look forward to finalizing the negotiations on the FAM chapter soon—stay tuned for its release.”
One of our readers from a post that will remain unnamed recently wrote a note with the following heads-up, “…our Front Office has gone on an anti-social media rampage of late.”
Something about slamming worker bees for not using Facebook or Twitter responsibly? Apparently, using our universal idiotic translator, that means anyone at post using FB or Twitter was not/not using it responsibly.
These folks have been sequestered inside the mission (before sequestration was a DC rage) due to well, reasons and are not allowed to meet their contacts outside the embassy compound. But our diplomats can continue their host country engagement despite the security hindrances in country X or Y because there now are plenty of social media tools. Except that embassies are not democracies, and when the Front Office is of the opinion that staffers who use these tools are not using it responsibly – what do you get? What kind of work can our diplomats realistically do when they cannot travel outside the embassy compound? What kind of host country outreach can be expected of them when even the mere use of social media tools is considered irresponsible use by their bosses?
And so the State Department’s social media schizophrenia continues, on background in that region over there.
This gives us an excuse to revisit the social media hubbub from last year about the change in the clearance regs, also known as the 2-day clearance for tweets scandal that gave everyone ants in their pants —
Anyway — rumor has it that when Condolezza Rice’s book was submitted for clearance at the State Department a year or so ago — the Executive Secretariat sent that around with very tight short fuze clearance taskers so that the 30 day timeline could be respected. This is the book where she reportedly congratulated herselfon forcing more State Department officials into the field.
Sometime last year year, we published in this blog a short piece on PTSD by an active FSO, and we understand that the clearance for that came through, shockingly enough within 24 hours.
So when the clearance system works, it rocks, but it does not always work as intended.
The current rules says that if the designated review period of 30 days run out without a response, that an employee may go ahead and publish the submitted material with a couple of caveats (no classified or protected info used). Which is good because it makes the clearance office accountable; officials cannot just sit on the submitted material for no reason than to stall publication. There is the risk, of course, that the Dept will go after you when you take that option. Prime example of this is retired FSO Peter Van Buren who wrote a comical and depressing account of reconstruction in Iraq in his book, We Meant Well.
That book was submitted for clearance, went beyond the 30 day timeframe and the author took the risk and published the book. The State Dept did go after him for purported use of classified information in the book, which did not wash or perhaps more appropriately, washed with bad streaks all over it. After a lengthy semi-public battle, Mr. Van Buren retired from the State Department with full benefits.
James Bruno, a retired FSO and author of political thrillers Permanent Interests, Chasm, Tribe and the latest, still waiting clearance, The Havana Queen, had to wait an average of six month for the State Department to review his books. Mr. Bruno wroteabout this in his blog:
“My book manuscripts must undergo government security review before I can even show them to a book agent or a publisher. Those I published before 2000 were cleared quickly and with little interference from the censors. The Bush-2 administration, however, tightened the process up greatly. It took almost six months to get clearance for my latest novel, “Tribe.” Upon completion of the manuscript, I phoned State to ask to whom I should send it. In return, they faxed me a letter stating, “Everything you write will be considered classified until cleared by this office.”
“This week, I shipped off to the U.S. State Department my fourth book for security review as required by nondisclosure rules binding on all active duty and retired government personnel who have held top secret security clearances. Taking an average of six months per review, my books will have sat a total of two years with the green eye-shaders in Washington. That’s two years of not being published. Two years of royalties not flowing into my bank account.”
If the 30-day timeline is to be respected for a former Secretary of State, it should be respected for all employees, active or retired, otherwise why have the rules in placed when there is selective application of the rules? Pardon me? That’s exactly why there are rules in place so exceptions can be made?
Well, dammit, that hurts our head!
Lost in noise of the 2-day clearance for tweets (which reportedly ain’t gonna happen!) is the central point that under the proposed rules, the State Dept endeavors to control much more firmly its employees speaking, writing, and media engagement, particularly on matters considered “of official concern,” that is, all matters of concern to the State Department. To put it bluntly, the gag works but did not work as well as evidenced by the Van Buren case. So an update is needed to make sure it works perfectly, silly.
Mary Jeffers, a senior State Department officer specializing in public diplomacy currently detailed outside Foggy Bottom had a piece on this in the takefiveblog. She writes:
Right now, if you are an Ambassador or PAO (public affairs officer) overseas you are cleared to tweet or post to social media (as well as talk to local journalists, do interviews with local media, etc.) as you see fit — and it doesn’t look like these new rules would change that. And if you are in Washington in an office that needs to communicate publicly about something, you can work with the PA staff in your own bureau to get near-instant clearance.
(Plus, employees can always use language that’s already been cleared, e.g. text from previous official speeches and statements — and frankly, a lot of language gets recycled this way because it’s efficient and ensures consistency, which is necessarily valued in this business).
And you can always pick up the phone to follow-up clearance requests to multiple offices, email them or if needed, walk your text to the clearance office. So what’s the real hubbub here? Ms. Jeffers with her pulse on the ground writes:
… in situations where the reason people might read your blog article or listen to your speech is that you work for State, but you want to use your own words and speak your own thoughts. And of course there’s a broad spectrum of such situations, ranging from invitational speaking that all State officers ought to do as part of their work (on one end) to whistle-blowing (at the other); and,
Close a loophole that indicated if State PA doesn’t respond to a request for clearance within a certain deadline, one is free to publish.
Those two items sit right at the heart of the matter.
The 3 FAM 4170 current rules applies to “all public speaking, writing and teaching materials of “official concern” whether done in official or private capacity. We suspect that the greatest impact on the proposed rules would be felt by employees speaking, writing, teaching and doing any sort of public engagement in their private capacity.
So all FB, Twitter, Blogger, WordPress, Ning, other social media platforms users who are State people, talking online about bidding, Iraq, assignments, promotions, housing, officially issued furniture, etc. etc. the proposed new rules are not going to be any better or easier despite official speechifying to the contrary. So you better stick with toucans. Look, the 30- day clearance will be shrunk to 2-5 days for social media posts. Apparently, the public thinks that’s unacceptable for official communication. Does that mean it is also unacceptable for employees communicating in their private capacity? Stay tuned.
Also as we’ve have blogged previously, the catch all language of the proposed new rules is troubling particularly on not violating “standards of character, integrity, and conduct expected of all Department employees as defined in 3 FAM 1216” — those standards are not even spelled out in the cited regulation! Oh, hey, did we hear right that this draft regulation was done by an intern?
In any case — all that and the proposed closure of the loophole contained in 3 FAM 4172.1-7 makes us think that tighter control of employee speech, particularly those done in a private capacity, is the main goal of the proposed new rules. It does not matter that there is now a new secretary of state. The building marches at its own tune. If the FAM update is not yet out (it’s not), it’s only because too much public attention probably made it suddenly shy.
As to the complaint overheard down that corridor that we should not be commenting on a draft reg — sorry folks, we could not help it. Once the regulation is finalized, it does not get any further hearing for a couple years or so. That’s way too long. This particular piece of the FAM has potentially significant repercussions to employees speaking in their private capacity. The mere fact that it leaked means others inside the building have significant concerns about it. Had management posted it in the spirit of true collaboration on the Sounding Board for comments, we probably would not have heard about it.
A blog pal wrote, asking if we knew that we caused a stir in the Truman building. Like “State did not have their talking points or justifications in order.”
Talking points need clearance, too. Oh dear.
The piece was picked up by Charles Cooper of C|Net on December 5, and he actually got an official email response from State’s deputy spokesman Mark Toner of the Bureau of Public Affairs.
Provisions in the Department’s Foreign Affairs Manual are constantly under review. We are in the process of updating the regulations governing publication — both traditional and digital — to recognize the dynamic and decentralized nature of the 21st century information environment. The updates are still in progress and not final. They will be public, like all of our regulations, when they are final.
Not a bad response. But it probably means, it gets updated every time something hits the fan.
3 FAM 4170for Official Clearance of Speaking, Writing, and Teaching was last updated in 2009. All except one of the sub-rules date back to 2005.
The rules for Using Social Media in the State Department are listed in 5 FAM 790 and released in June 2010. One of State’s self-identified media gurus once told us that this reg is not perfect; but so far we have not seen any effort to improved it.
Once the rules are in the books, it’ll take sometime before the regs gets another update.
A few days after the WaPo and C|Net articles, Will McCants, an analyst at CNA and a former senior adviser for countering violent extremism at the State Department as well as the author of a DoD-commissioned study of how to communicate with foreign audiences using social media, wrote Lost in Cyberspace in Foreign Policy. Excerpt below:
Although the review began before the U.S. Embassy in Cairo tweeted controversial denunciations of the anti-Mohamed YouTube clip that sparked riots in September, friends at State tell me that Embassy Cairo’s tweets — which were not approved by Washington — gave added urgency to the effort to draft new guidelines for online behavior. State’s contemplated restrictions on its employees’ use of Twitter do not arise from a misunderstanding of a medium; some of Twitter’s most prominent members, including Jared Cohen and Alec Ross, work or have worked at State. Rather, State worries that the freewheeling, uncontrollable environment of Twitter could lead the public interpret the tweets of its employees as representing the official U.S. position on sensitive issues.
“The more State allows its employees to tweet during periods of calm, the more likely it will be that the institution can weed out problem tweeters and elevate those who have done a good job cultivating a community of interest.”
There is also something to be said for creating a little distance between the official U.S. position declared by a State spokesperson and tweets from embassy spokespeople and employees. State can take a long time formulating messages in response to crises because it has to vet them in many offices and, often, with the national security staff in the White House. By allowing embassy tweeters to message on their own, State will get early indications of what works and what doesn’t for the various audiences it is trying to reach.
Attracted lots of eyeballs. Fun twittersation follows the FP article.
Even @NickKristof waded in and then others, too.
@NickKristof If the State Dept is really thinking about 2-day vetting of tweets, that’s the dumbest idea ever.
@AlecJRoss “@Diplopundit @emilcDC @thenewdiplomats @tomistweeting My team involved in drafting/approving. Not even close to what has been blogged.”
Whoops! Cushy tushy hurts! But teh-heh!
Here is a curious thing. The Public Affairs guy responded to C|Net earlier on, and then Mr. Ross took to the spin floor later on. Note that Alec J. Ross may be the senior advisor at the Office of the Secretary of State, but the clearing office for all matters in the Big House is located within the Bureau of Public Affairs, an office in the Under Secretary of Public Diplomacy and Public Affairs. How involved is his team in “drafting/approving” the regs we may never know. But there are multiple offices involved in the drafting and clearance of the regs not just one.
Perhaps somebody should get in touch?
So then, Alec J. Ross whose actual title if you don’t know it yet is senior advisor for innovation at the Office of the Secretary of State, responded to Will McCants’s piece with:
Updating our social-media guidelines will help make the State Dept MORE open and social media-centric, not less open. It will also make us faster.
EXISTING guidelines allow a 30-day review period for all forms of public communication, including those intended for online publications and social media, though in practice review and response is much quicker. That means that the policy we have in place NOW allows us a 30-day review period. If the DRAFT guidelines go into effect as they are (and they’re still draft), that would shrink from 30 days to two days for a small subset of content. It doesn’t mean that we would take the two days or that it would increase the number of social media posts that are reviewed. We just want to provide an outside window by which employees are promised a response. “
Somebody walked that statement to the PA clearance office, huh? And since Mr. Ross is practically a Twitter national, he also tweeted the author and got an immediate response.
@will_mccants oops, should have submitted my article 4 review RT @AlecJRoss: @will_mccants In future please get in touch before publishing on this topic.
Okay, then, Mr. Ross’s response sounds good. Looking forward to a fantastic “MORE open and social media-centric” final rule. But hey, don’t forget, 5 FAM 790on Using Social Media needs a good scrubbing, too. We’ll have a separate post on how well the 30 day clearance rule rocks outside the studio.
But on social media, the demand for almost immediate response carries an inherent risk. The question is how much are you willing to risk? And what about those who are “engaging” in the the public sphere in their personal capacity? How tolerant is your organization to perceived mistakes that will inevitably happen?
Anyway, wasn’t US Embassy Egypt’s Larry Schwartz thrown under the bus because of those ‘er “mistakes of commission?” Recalled anyone with balls from State’s 21st century statecraft shop who went online to defend our man in Cairo?
We don’t recall Mr. Ross or anyone at State with a Twitter handle defending the poor sod at the US Embassy in Cairo in the aftermath of that controversial statement and tweets following the mob attack there in September. The statement and the tweets could have only been approved by the Chief of Mission in Cairo because that’s where the clearance authority is delegated per FAM regulations.
See more here. The notion that the embassy statement was sent to Main State for clearance when there was a senior PA officer at post, or that the PAO was specifically told not to use it and he went ahead and did it anyway is just way too ludicrous. That’s not how careers are built at State.
And really dudes — if the mob is going over your walls, and the police is not coming, you want to try and diffuse the situation rather than throw petrol bombs at the crowd. So …
President Obama, who does not hold office at the State Department did offer muted support which is better than nothing: “And my tendency is to cut folks a little bit of slack when they’re in that circumstance, rather than try to question their judgment from the comfort of a campaign office.”
Secretary Clinton said what? Sorry, can’t hear you.
Still, in October, unnamed State Dept officials told the WSJthat Mr. Schwartz had been on temporary assignment in Cairo and has been given a new “permanent position” in Washington. They made the relocation sounds like a promotion. While a TDY assignment to Cairo is not unheard of, Egypt is not/not a Hard to Fill post. Which means assignments are formalized a year before an FSO is actually assigned there. Prior to Cairo, Mr. Schwartz was the Director for Planning, Policy, and Resources at the Office of the Under Secretary of State for Public Diplomacy and Public Affairs. As to Mr. Schwartz being given a new permanent position, he is not listed anywhere on the State Dept’s current directory. Anyone know if he even has a real desk there?
Perhaps State is learning. Last November when @USEmbassyCairo made another splash on Twitter, at least the Near Eastern Affairs bureau spokesman showed up for some sort of “we’ve got your back” moment.
That’s a good thing. And it should help, too if you stop throwing your guys under the bus.
WaPo’s Emily Heil gave Diplopundit a walk-on part in today’s In the Loop.
The State Department is considering instituting an extreme version of the famous 7-second delay used to keep profanity off live TV.
The department is rewriting its rules on social media, blogging, speeches and other appearances by employees, suggesting that officials get a full two days to review an employee’s proposed tweets and five days to give a yea or nay to a blog post, speech, or remarks prepared for a live event, according to the blog Diplopundit.
State Department deputy spokesman Mark Toner tells the Loop the still-in-the-works changes are merely updates “to recognize the dynamic and decentralized nature of the 21st century information environment.”
We know agency budgets are tight all around, but it sounds like the State Department better spring for some extra red pens.
Just to be sure, this is in reference to the — okay, “still-in-the works” changes of 3 FAM 4170 and not/not 5 FAM 790 released in 2010 which set the rules for the use of social media by State Department employees.
We’ve asked if these new changes have any bearing on spouses and partners of State employees but have not heard anything back.