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DOD and Social Networking Part II
April 23, 2009 at 6:46 pm #70710
As stated in an earlier discussion the Issue of Social Networking within DOD is PERHAPS going to MAYBE get a just a little chaotic...
Blog Policy Flawed?
In order to successfully complete ILE, each student must post a blog discussing some aspect of his Army experience. Each blog must clearly identify the student by name, organization, and relationship within the Combined Arms Center, and each student must attach a disclaimer at the end of the blog indicating that the views are those of the author and not of the Army, Department of Defense, or U.S. Government. The blog requirement, in its current form, potentially violates DoD and Army guidance on OPSEC and public release of official information. Additionally, it possibly threatens the privacy interests of each ILE student. Therefore, I recommend either rescission or modification of this blog requirement.
Pursuant to DoDD 5230.09, Clearance of DoD Information for Public Release (August 22, 2008), a review must occur prior to public release of any official DoD information concerning military matters, national security issues, or subjects of concern to the DoD. See para. 4b, DoDD 5230.09. Official DoD information includes all information a DoD employee acquired as part of his official duties or because of his official status within the DoD. See glossary, DoDD 5230.09. Because students must blog about their Army story to fulfill the ILE blog requirement, students may blog about their experiences and official duties as Army officers. Therefore, the blog requirement potentially implicates the prior review rule found in DoDD 5230.09.
The DoD has crafted several exceptions to the prior review rule. Two such exceptions applicable to the ILE blog requirement are the academic environment exception and the private capacity exception. The academic environment exception’s intent is to encourage academic freedom and intellectual expression. As such, this exception allows students and faculty members in a DoD school to submit materials prepared in response to academic requirements without a review if the information is not intended for release outside the school. If the information is intended for public release, then a review must occur. If the information does not disclose classified information, does not jeopardize DoD interests, and the author accurately portrays official policy, then the DoD shall approve release of the information. See para. 4e, DoDD 5230.09.
The private capacity exception provides that DoD personnel acting in a private capacity and not in connection with their official duties have the right to prepare information for public release through non-DoD fora or media. A review of such information must occur prior to release if it meets criteria outlined in DoDI 5230.29, Security and Policy Review of DoD Information for Public Release (January 8, 2009). Such criteria include:
a. The information has the potential to become an item of international or national interest;
b. The information affects national security policy, foreign relations, or ongoing negotiations;
c. The information is potentially controversial in the DoD or with other Federal agencies;
d. A DoD person who, by virtue of rank, position, or expertise, would be considered an official DoD spokesperson;
e. The information addresses a critical topic such as military operations and exercises of national or international importance, new or improved weapons systems, military activities in space; or
f. The information concerns any contemporary topic designated by the SECARMY as critical.
Although the ILE blog requirement is an academic requirement in a DoD school, each student must post his blog in the public domain. Therefore, the academic environment exception does not shield the blog from the prior review requirement. Similarly, the private capacity exception could shield the blog requirement from the prior review requirement. As part of the blog requirement, each student, however, must state his name, organization, and relationship with the CAC. As such, the student is not blogging in his private capacity, even though each student must attach a disclaimer to his blog. Therefore, the private capacity exception likely does not apply.
Assuming, arguendo, that the private capacity exception applies, the information in the blogs may trigger the prior review requirement because the information may meet the criteria outlined in DoDI 5230.29. Additionally, AR 530-1, Operations Security (19 April 2007), provides that prior to publishing or posting information in a public forum, Army personnel must “Consult with their immediate supervisor and their OPSEC Officer for an OPSEC review . . . . This includes, but is not limited to . . . Web site postings, web log (blog) postings, discussions in Internet information forums, discussions in Internet message boards or other forms of dissemination or documentation.” See para. 2-1g, AR 530-1. Therefore, regardless of whether or not the private capacity exception applies, each student must submit his blog to his supervisor and OPSEC Officer for a review prior to publishing the blog. This review must ensure that sensitive and critical information, as well as classified information is not released. See para. 2-1, AR 530-1.
In addition to possibly violating DoD and Army guidance on public release of official information, mandating that private individuals make public blog postings also threatens ILE students’ privacy interests. Some students may have a personal or professional reason for limiting the number of public comments they make. For instance, a Judge Advocate who defends the United States in federal court when it is sued for the Army’s actions may have a professional interest in limiting the number of public comments he makes. A Judge Advocate who served as a prosecutor may wish to limit the amount of information available on the internet to Soldiers he has prosecuted in the past. A Special Forces officer who may deploy in the future may also want to limit the amount of information about him on the internet. Similarly, an officer scheduled to deploy with a MiTT team may want to limit the information about him on the internet.
Congress has recognized the importance of shielding DoD personnel’s personally identifying information from public disclosure. Congress has created several exceptions to the Freedom of Information Act, an act which mandates that all federal agencies disclose records requested in writing by any person. One such exception to the Act allows the Secretary of Defense to withhold from disclosure personally identifying information of DoD personnel in overseas, sensitive, or routinely deployable units. See 10 USC § 130b. Personally identifying information includes a person’s name, rank, duty address, official title, and information regarding the person’s pay.
Although the ILE blog requirement does not trigger a Freedom of Information Act analysis, the personally identifying information exception serves as persuasive authority. Congress, in creating this exception, recognized the unique threat to and privacy interests of DoD personnel. After the attacks of September 11, the DoD also recognized that because “DoD personnel are at increased risk regardless of their duties or assignment . . . , release of names and other personal information must be more carefully scrutinized and limited.” See DoD Memorandum, Subject: Withholding of Personally Identifying Information Under the Freedom of Information Act (FOIA) (November 9, 2001).
Requiring ILE students to blog publicly runs counter to the need Congress and DoD has recognized to protect personally identifying information from public release. To preserve the privacy interests of ILE students and to comply with DoD and Army guidance on publication of official information, I recommend rescission or modification of the ILE blog requirement. If the ILE blog requirement remains, all blog submissions should be reviewed prior to publication, in accordance with AR 530-1, and students should be permitted to blog anonymously or with a pseudonym.
Major Deirdre G. Brou, student, small group 30B, Command and General Staff College, FT Belvoir, VA
The views expressed in this blog are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.
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