Social media challenges federal oversight of agency communications

Federal agencies’ growing use of social media is making it harder for Congress to monitor those communications to ensure they do not contain inappropriate political or policy statements, according to a new report from the Congressional Research Service, a policy arm of Congress.

Federal agencies routinely communicate with the public to inform people of their rights and entitlements, provide information on the agencies' activities, inform them of risks and dangers and invite input into government deliberations.

At the same time, there is a long history of lawmakers wrestling with the executive branch over the appropriate use of public funds for agency communications.

To maintain separation of powers, Congress passed a law in 1919 stating that no federal agency can spend funding to encourage the public to contact members of Congress. In addition, most federal spending laws contain language forbidding agencies’ use of funds “for publicity or propaganda,” the CRS report states.

However, while those laws are still in effect, they have been difficult to enforce because it has been hard to define “publicity” and “propaganda” and because of the complexities of new forms of digital media, the report adds.

“These statutory prohibitions do not well clarify licit from illicit public communications,” Kevin Kosar, CRS analyst for American national government, wrote in the March 14 report. The report was made public by the Federation of American Scientists and posted on the FAS.org website.

The report suggests many agency employees also may not be aware of the legal restrictions. For example, the report notes that the Veterans Affairs Department’s directive on employee use of social media does not mention the prohibitions on publicity and propaganda.

Complicating the picture further is the fact that federal agencies are engaging in more and more social media communications. Nearly all federal agencies have Facebook, YouTube and Twitter accounts, and many agencies have several accounts on each platform.

Many of the social media accounts are low-cost and easy to use, which has facilitated their adoption, the CRS report said.

On the other hand, the special attributes of social communications has added risks and made monitoring more difficult, Kosar wrote.

"The ease of producing new media communications makes it easier for agencies to produce more public communications,” the CRS report said. “More communications may provide for more opportunities for an agency to transgress (inadvertently or otherwise) the statutory prohibitions against unauthorized publicity and propaganda and lobbying with appropriated funds.”

Furthermore, having a real-time, two-way discussion on a site such as Facebook or Twitter may lead to problems by removing the “filter” that exists between agency employees and the public, the report suggested.

“This intimacy and immediacy enables prompt communications between agencies and the public. It also may lead to agency employees making misstatements of fact or comments that violate statutory restrictions,” the CRS report warned.

The report also quotes Daniel Mintz, who served as CIO of the Transportation Department under George W. Bush, saying that any statements made online by a federal employee can be construed as having established or implied a policy.

Kosar also noted that many forms of digital communications, especially chat and live video, are more difficult to authenticate, preserve and locate, and they may be deleted easily, which makes oversight even more difficult. Many agencies do not identify the employees who post statements on their Twitter and Facebook accounts, which makes accountability more difficult.

Even a simple activity such as publishing the testimony made by agency officials at congressional hearings might be cause a problem.

“Arguably, any time an agency publishes anything on the Internet it could have the effect (intentionally or unintentionally) of encouraging citizens to contact Congress, especially if the communication ‘goes viral,’” Kosar wrote. “Thus, an agency may think it is serving the public’s ‘need to know’ by publishing its congressional testimony online on the day of a hearing. Congress, meanwhile, might view this as an attempt to create public pressure.”

The CRS report makes several recommendations to Congress to improve its oversight of communications:

• Develop better definitions for terms in law including “publicity” and “propaganda.”
• Update the 1919 anti-lobbying statute to cover new media communications.
• Survey agencies to see whether agency employees who use new media are aware of, and trained to work within, the current laws.
• Require all agency public communications to identify the author and his or her position at the agency.
• Require the OMB to provide agencies with public communications guidelines.
• Require agencies to report annually to Congress on their public communications activities, expenditures, and the agencies’ rationales for these activities.
• Assess the agencies' communications annually.