For at least the last ten months, subscribers to Portland Mayor Kate Snyder’s monthly email newsletter have been receiving City news and updates on a variety of issues of interest to Portlanders. On October 3, however, they received a very different kind of message: Snyder’s endorsement of four candidates in the At-Large, District 1, and District 2 City Council races, as well as the At-Large School Board race. The email, sent from the Mayor’s official portlandmaine.gov email address, violated the City’s policy on political activity and raises questions about government transparency, constituent privacy, and who owns the Mayor’s list.
Snyder’s emailed endorsements came sandwiched between civic information about early voting, absentee ballots, and the dates of upcoming candidate forums. “Now more than ever – we need independent thinkers committed to Public Service. Not politics,” Snyder declared before delivering her own partisan political message of support for the four candidates, including detailed campaign summaries and links to their websites.
Several subscribers to the Mayor’s email list noticed the partisan shift and spoke up about it. “It’s my understanding that you are not supposed to use government resources for electioneering. Seems like this email should not come from a .gov email address. Am I wrong?” one subscriber replied.
“There must be some City ordinance against officials acting in their elected role from campaigning for other candidates or at least using City/public tools in a campaigning capacity,” State Representative Grayson Lookner wrote in a public social media post.
In fact, there is. The City’s policy on political activity states that, “At no time may an employee use his or her [sic] City position, nor use City facilities, equipment, materials or supplies to communicate, organize, assist, or advocate for or against any candidate for elected office, including his or her [sic] own candidacy…”
The following day, In response to a press inquiry, the Mayor issued an apology to her list, stating that she had linked her MailChimp email list to her portlandmaine.gov address for purposes of public transparency. “My MailChimp account (free, no subscription fees, or city resources used – financial or personnel) is tied to my work email for reasons of FOAA (any responses come to my government email). I used this MailChimp account to send the email,” Snyder wrote, adding that for the endorsement email, she should have substituted her personal email address.
MailChimp is an email marketing platform that helps users manage large lists of contacts to drive engagement. For businesses, “engagement” means growing, tracking, and persuading their audience with emails to make sales. Increasingly, political campaigns are using MailChimp to build an engaged base for collecting donations and, ultimately, votes. Email lists are valuable to politicians because nothing persuades voters quite like direct email contact. Large email lists are often bought and sold by political Parties for exorbitant sums, and the use of them as a political commodity can be considered a campaign donation subject to campaign finance disclosure laws. But what happens with that list when a candidate becomes an elected official?
Acting in her official capacity as the City’s highest ranking elected official, since at least January 2021, Snyder has been sending emails to what is presumably her campaign list through MailChimp’s platform, masked as portlandmaine.gov official communication, using official City news and information as content to inform subscribers and attract new ones. She repeatedly encouraged her contacts to forward her emails to others, directing them to sign up through her official portlandmaine.gov email address. City policy is clear that the Mayor is not allowed to campaign from her portlandmaine.gov email account. It would stand to reason then that she also cannot build a campaign list (for herself or anyone else) while on the taxpayer’s dime. In a private organization, an email list built this way would be the property of the company, not the employee.
Campaigning and list building is not the only reason to be concerned. Snyder stated she linked her City of Portland email to her MailChimp so that her public communications would be publicly discoverable. However, so far, that transparency has been elusive. A FOAA request by PineandRoses.org for recipients of the October 3 email yielded only the email itself. City spokesperson Jessica Grondin said she was unable to provide the names of people the Mayor is communicating with through MailChimp because, “We do not have access to it and therefore it is not a record in our possession, custody and/or control.”
Whom the Mayor sends emails to is not the only thing shrouded in secrecy. How many contacts the list contains, and its growth over time are also undiscoverable through FOAA requests. “MailChimp makes it look to the recipient like the email is coming from a portlandmaine.gov email, and replies go there, but it’s not really coming from the City,” said Mike Desjardins, a software engineer with twenty-five years experience working with email marketing platforms, including MailChimp. In fact, none of the emails Snyder sends using MailChimp can be tracked down by the City unless someone replies to them, thereby bringing them into the City’s mail server.
Brenda Kielty, Assistant Attorney General and Public Access Ombudsman, was concerned enough about use of this technology to submit the case to the State’s Right To Know Advisory Committee for consideration at their October 19 meeting in order to get some perspective on what kind of liability such technology presents, and if the State should move forward with a policy to address it.
“One danger with email marketing tools is that if they’re not configured correctly, data harvesting mechanisms (for example, tracking pixels) become enmeshed with what appears to be official harmless government communication,” said Desjardins. Tracking pixels are images, embedded in emails and invisible to the recipient, which load or “turn on” when the email is opened, recording in-depth information, like what time the user opens the email, how many times and for how long it was open, what other web browser windows are open, and what system preferences are selected for the duration of the session—all without the user’s express consent. Some of that information is made available to the keeper of the email list, in this case Snyder, but some of it is siphoned off to be used or sold by Mailchimp. “You should be able to trust that an email that claims to be coming from a portlandmaine.gov email address is actually managed by the City, and isn’t subject to processes that measure click rates and engagement,” said Desjardins.
The use of “big data” harvesting tools by public officials further obscures the privacy risks inherent in them, creates barriers to public disclosure laws, and erodes trust in government. Until we can be assured that City and State laws are keeping up with the proliferation of this technology, the Mayor’s apology should not be the end of the discussion.
*Cover photo of Mayor Kate Snyder, photo courtesy PPH, Ben McCanna/Staff Photographer