Your boss has a say over you while you’re on the clock or using the boss’s equipment. But can the boss control what you say off-duty, on the Web? Officials in Kent County, Delaware, think so:

The county’s Levy Court — the equivalent of a county council — has an existing rule that bars employees from using government equipment for personal social media activity at work. But a recent proposal would extend that ban to include activity during non-work times, specifically as it relates to commentary that disparages co-workers or reflects unfavorably toward the county government [Brian Heaton, “Social Media Usage Becoming a Free Speech Question for Governments,” Government Technology, 2011.05.17 ].

As law professor Phillip Sparkes points out in this article, Kent County is going well beyond the boundaries on public employee speech set by Garcetti v Ceballos (2006). That case recognized that public employers can place some limits on what city officials, teachers, and other public employees say while acting in an official capacity. However, that case does not allow government to impose rules on off-duty speech like those proposed by Kent County.

Arvada, Colorado, CIO Michele Hovet offers a more realistic approach to public employees’ First Amendment rights:

“I think folks that draw lines as far as what you can and can’t do on your free time are avoiding the inevitable,” she said. “Social media has been here and it’s not going away. Locking it down is just going to create more management headaches in the long run” [Heaton, 2011.05.17].

People are going to talk… and Tweet. They’re going to use their smartphones and iPads to do so. Trying to control employees’ every utterance is unconstitutional and impractical. Instead of trying to keep employees from talking, local governments will make better use of their time working to treat employees and the public right so they all have good things to talk about.


I had queued up for commentary Andy Opsahl’s latest column on the Federal Communication Commission’s national broadband plan and its implications for local governments (such as decreased revenue from right-of-way fees on fiber installations — dang, didn’t see that one coming!).

Then the District of Columbia U.S. Court of Appeals throws a monkey wrench in my blogging plans and the entire Internet by ruling today that the FCC doesn’t have authority over the Internet:

Specifically, the court ruled that the FCC failed to establish its legal authority for an action it took against Comcast in 2008. The FCC said at the time that Comcast improperly blocked its consumers from using BitTorrent, an Internet application used to share large files, such as movies.

The court decision is a stinging setback for proponents of so-called net neutrality rules, which would require Internet service providers to treat all Internet traffic equally. Without such rules, critics fear that Internet service providers could play favorites on their networks, blocking or charging for video or other content that competes with their own offerings, or offering lower speeds for those outside services.

“The ramifications of this go far beyond Comcast blocking BitTorrent,” said S. Derek Turner, research director for the consumer advocacy group Free Press. “The FCC is essentially unable now to protect consumers and implement the national broadband plan” [Mike Zapler and Mike Swift, “FCC lacks authority to enforce net neutrality, appeals court says,” San Jose Mercury News, 2010.04.06].

So if the FCC doesn’t have the authority to regulate the Internet, who does?

Read more at Wired and Wall Street Journal. And remember: when it comes to net neutrality, don’t listen to Glenn Beck.

VistA works. No, not Microsoft Vista, but VistA, the  Veterans Health Information Systems and Technology Architecture. VistA is an open-source collection of a hundred modules built by the Veterans Administration’s own doctors, nurses, and programmers over the last thirty years. It is a model of bottom-up innovation and local customization. It has also turned the VA from the object of media/movie horror stories to the best health care provider in America.

The open-source nature of VistA allowed it to win much easier acceptance from VA staff across the country because, if they found it was making their work more difficult, they could rip out the guts and make it work. If they discovered missing functionality, they could create it to suit their needs. One brilliant innovation, a bar-coding system that has cut medication errors and saved thousands of lives, was designed by Topeka VA nurse Sue Kinnick after she saw how slick the bar-coding system worked at a car rental place. Kinnick didn’t have to get approval from anyone outside her facility; she turned the idea into software, her facility tried it out, and it worked well enough to win converts throughout the system. No one had to force the bar-coding scheme on anyone; other VA hospitals gladly adopted it and adapted it to their own needs. That’s how open-source works: give folks the independence to try out diverse ideas in a decentralized system, maintain a mechanism that will allow you to aggregate those ideas, and the wisdom of crowds will often produce pretty good solutions.

Diversity of ideas, independence, decentralization, and aggregation: those don’t exactly sound like values consistent with the federal government. Indeed, when VistA’s predecessor code started bubbling up from ground-floor VA staff in the late 1970’s, the government tried to kill it. VA uppity-ups favored an official, centralized computerization program that was also in development. It took an act of Congress (thank you, Rep. Sonny Montgomery) to make VistA the official VA system in the early 1980s.

But now the VA appears bent on killing this golden goose. On May 26, the VA issued a memorandum ordering a moratorium on all “Class III” (i.e., local and collaborative) VistA development. Citing safety concerns, the VA declared that, bascially, all VistA development must be approved by Washington. Goodbye open source, hello centralization.

Rick Marshall sees this move as another step in a 15-year effort to squash the open-source, local-control programming that has served VA so well. Why would the VA give short shrift to the actual needs of its staff and patients?

This bureaucracy is under no obligation to listen to user requests. Instead, it listens to Congress, which listens to campaign contributors who lobby to replace VistA with their own software. And so the VistA bureaucracy has become obsessively focused on its own grand vision: replacing VistA with something more centralized and vendor-friendly. In the name of “modernization,” with Congress’ blessing, national development has poured most of its resources into a series of unwanted, unrealistic pork-barrel replacement projects that have squandered several billion dollars so far and left only failure, waste and demoralization behind.

With national development consumed by the replacement craze, users have relied on local developers to meet many of their actual VistA needs. Though most “local” developers have already been conscripted to assist in national development, many have continued to do local development on the side in an attempt to respond to the most urgent of their users’ requests.

This new memo puts an end to that. It puts doctors, nurses and other hospital staff in their new place—last. It unwittingly puts patient health outcomes down there with them. Turning hospitals into helpless consumers of national daydreams is all for their own good, of course—for their “safety.”

This is pure rationalization, but it’s nothing new. It is the culmination of a 15-year unwritten policy of dragging VistA away from the proven success of its user-driven model and toward the proven failure of a centralized model much like the one the creators of VistA rebelled against back in the 1970s. But the centralized model has one thing going for it: the big donors’ lobbyists want it, so Congress demands it [Frederick “Rick” Marshall, “Commentary: VA Memo Squashes VistA Innovation,”, 2009.07.29].

Moving to centralized proprietary software would be a disaster for the VA. Phillip Longman notes that proprietary health IT software doesn’t work specifically because it is designed by programmers removed from the working medical environment. They crank out code that makes doctors’ and nurses’ work more difficult. The proprietary vendors often impose license restrictions — more accurately called gag rules — that forbid hospitals from telling other facilities about bugs they discover in the code. And proprietary vendors are so worried about keeping customers locked into their purchase that they build systems that can’t talk to each other. As Longman puts it, “Patients might as well be schlepping around file folders full of handwritten charts.”

The democratic, participatory, grassroots nature of open source development helped the VA develop the first and best electronic medical record system in America, a system that has cut costs and saved thousands of lives. To abandon the open source model that has created “perhaps the greatest success story for government-developed information technology since the Internet itself” is a, to put it mildly, an enormous disappointment. The VA should cancel its May 26 memorandum and let its people do what they’ve been doing best for three decades: designing medical software that works for medical staff and the millions of veterans they serve.