Tyler Vogt goes ‘phishing’ for your email address

Posted by AzBlueMeanie:

Back in June, Republican Tucson City Council candidate Tyler Vogt "filed a public records request to get the email addresses of folks receiving updates from council members." Political Notebook (June 26, 2011):

Democrat Paul Cunningham told constituents in his newsletter he thought that was inappropriate since the newsletter is for ward-business only.

Cunningham said unhappy folks should complain. Not to the city attorney, mind you, but to Vogt — and gave out his cell number for good measure. ["If you are disappointed in this, please call the requestor at 520-971-4481."]

Turns out you may actually want to contact the city attorney. Yesterday I received this email solicitation for a campaign contribution from Mr. Vogt. The email solicitation includes this disclaimer at the end:

This email was sent to  ************
You are receiving this email because you are registered with Tyler Vogt to receive this mailing. (emphasis added) To manage your subscription preferences, or to remove your email address from our list, please do not reply to this email since it will only delay your request. Instead, please use the link below to process your subscription and removal requests.
preferences

I most certainly did NOT register with Tyler Vogt to receive his mailings. And shortly after I received his email solicitation I received a flurry of emails from other Democrats complaining that they also just received this email solicitation for a campaign contribution from Tyler Vogt.

Tyler Vogt maybe should have checked with his "younger smarter brother" Rep. Ted Vogt about using a public records request to go "phishing" for your email address for a commercial purpose, i.e., soliciting campaign contributions.

The City attorney and political reporters (if there are any left after the mass layoffs at the Arizona Daily Star) should review Mr. Vogt's public records request carefully to determine whether he fully complied with Arizona law and disclosed the commercial purpose for his public records request, and whether he was charged the appropriate "commercial market" value for this email list.

Specifically, A.R.S. Sec. 39-121.03. Request for copies, printouts or photographs; statement of purpose; commercial purpose as abuse of public record; determination by governor; civil penalty; definition

A. When a person requests copies, printouts or photographs of public records for a commercial purpose, the person shall provide a statement setting forth the commercial purpose for which the copies, printouts or photographs will be used. Upon being furnished the statement the custodian of such records may furnish reproductions, the charge for which shall include the following:

1. A portion of the cost to the public body for obtaining the original or copies of the documents, printouts or photographs.

2. A reasonable fee for the cost of time, materials, equipment and personnel in producing such reproduction.

3. The value of the reproduction on the commercial market as best determined by the public body.

B. If the custodian of a public record determines that the commercial purpose stated in the statement is a misuse of public records or is an abuse of the right to receive public records, the custodian may apply to the governor requesting that the governor by executive order prohibit the furnishing of copies, printouts or photographs for such commercial purpose. The governor, upon application from a custodian of public records, shall determine whether the commercial purpose is a misuse or an abuse of the public record. If the governor determines that the public record shall not be provided for such commercial purpose the governor shall issue an executive order prohibiting the providing of such public records for such commercial purpose. If no order is issued within thirty days of the date of application, the custodian of public records shall provide such copies, printouts or photographs upon being paid the fee determined pursuant to subsection A.

C. A person who obtains a public record for a commercial purpose without indicating the commercial purpose or who obtains a public record for a noncommercial purpose and uses or knowingly allows the use of such public record for a commercial purpose or who obtains a public record for a commercial purpose and uses or knowingly allows the use of such public record for a different commercial purpose or who obtains a public record from anyone other than the custodian of such records and uses it for a commercial purpose shall in addition to other penalties be liable to the state or the political subdivision from which the public record was obtained for damages in the amount of three times the amount which would have been charged for the public record had the commercial purpose been stated plus costs and reasonable attorney fees or shall be liable to the state or the political subdivision for the amount of three times the actual damages if it can be shown that the public record would not have been provided had the commercial purpose of actual use been stated at the time of obtaining the records.

D. For the purposes of this section, "commercial purpose" means the use of a public record for the purpose of sale or resale or for the purpose of producing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record. Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial or quasi-judicial body.

I have a strong hunch that Tyler Vogt did not comply with the above law, and that his use of email addresses obtained by way of a public records request to solicit campaign contributions from subscribers to the ward newsletters of Tucson City Council Members is a misuse and abuse of public records in violation of A.R.S. Sec. 39-121.03 (B) and (C) above.

Moreover, the City of Tucson maintains a "Privacy Policy" regarding communications with the City of Tucson. While your email communications are a public record subject to a public records request, such requests cannot be misused or abused as noted above. Here is a quick sampling of how the City of Tucson Privacy Policy is described online. Privacy Policy | City Of Tucson:

What do we use your information for?

Any of the information we collect from you may be used in one of the following ways:

• To personalize your experience
(your information helps us to better respond to your individual needs)

• To improve our website
(we continually strive to improve our website offerings based on the information and feedback we receive from you)

• To improve customer service
(your information helps us to more effectively respond to your customer service requests and support needs)

• To process transactions

Your information, whether public or private, will not be sold, exchanged, transferred, or given to any other company for any reason whatsoever, without your consent, other than for the express purpose of delivering the purchased product or service requested.

• To send periodic emails

The email address you provide for order processing, will only be used to send you information and updates pertaining to your order.

If you decide to opt-in to our mailing list, you will receive emails that may include company news, updates, related product or service information, etc.

Note: If at any time you would like to unsubscribe from receiving future emails, simply click on the unsubscribe options at the bottom of every email.

And Web Policies | The Official Website for the City of Tucson, Arizona:

Privacy & Security Policy

You do not have to provide personal information to visit this site. The City will not collect personally identifiable information, such as your name or e-mail address, unless you specifically and knowingly provide it. Any personally identifying information you provide will be used to respond to your question or to process your transaction and/or request for information. Communications received by the City from any source are generally available to the public under provisions of the state public records laws.

If you send us an electronic mail message (e-mail) that contains personally identifiable information or fill out a form that e-mails us this information, we will use the personally identifiable information to respond to you. We may redirect your question to another person within the City of Tucson who is best able to answer your question. E-mail is within the definition of a public record under the state public records law and is subject to public disclosure under that law.

To protect this site and ensure this service remains available to all, the City of Tucson uses software programs to monitor network traffic and identify attempts to change information on this web site or otherwise cause damage to this site. This information is not reported or used in any manner that would reveal personally identifiable information, except as may be required to support authorized law enforcement investigations.

This site uses a secure server for conducting online services. Some information that you submit through this Web site is protected by encryption technology, some is not. Current browsers indicate whether a site or page is secure. At the bottom of the browser window, you should see a key or lock symbol. If the key image is not broken or the lock image appears locked, then you are on a secure Web site or page. If the key or lock images are not present or appear broken, that page is not secured. Additionally, the address bar URL beginning with https indicates a secure connection.

It is not surprising to me that this Tea-Publican troll showed such contempt for the rule of law and your privacy rights. This matter should be investigated by the City Attorney to determine whether there is a violation of law and/or a legal remedy. At a minimum, Tyler Vogt should remove the names of anyone who has not expressly requested to receive (opted-in) his mailing list.

UPDATE: Dan Gibson at the Tucson Weekly addresses the "spam" aspect of Tyler Vogt's email solicitation in Tyler Vogt, You Are Terrible at the Internet | The Range:

When Congress passed the CAN-SPAM Act in 2003, they left a rather gaping hole for political emails, exempting them for most of the restrictions that the Tucson Weekly or commercial enterprises are held to. However, there's just a basic idea that when you send out an email representing yourself, you don't want to be an intrusive jack-ass. Saying that…congratulations, Tyler Vogt…you've managed to really screw up the whole email thing.

* * *

[I]t's a terrible idea to take that list, and send out a email with the subject "Tucson City Council" with request for donations. It's doubly terrible to send out an unsolicited email that doesn't make it easy to get off the list that wasn't yours to begin with (several people who received the email complained online about how difficult or impossible it was to unsubscribe)…and that's what Tyler Vogt did with the email he sent out Friday. Let's ignore the generally snotty tone of the email itself, but it would have been a lot smoother if he just made the contention for his election and then given interested voters a place to get more information (and maybe even a place to donate, if they feel like it).

But instead, even if Tyler Vogt didn't legally "spam" Tucsonans, he did so in spirit. That general lack of 21st century common sense and decorum isn't a great sign for what he would do as an officeholder. Bad form, Tyler Vogt. Bad form.