Channel: Religious Intelligence  Author: George Conger

A “dirty tricks” campaign has blown up in the faces of liberal activists in the Episcopal Church, as the publication of purloined e-mails has led to allegations of “conduct unbecoming a member of the clergy” being lodged against the leader of the gay-pressure group Integrity and a member of the Episcopal Church’s Executive Council.

Bishops associated with the Anglican Communion Institute (ACI) have asked the bishops of Los Angeles and Delaware to look in to the conduct of the Rev Susan Russell and the Rev Canon Mark Harris for having surreptitiously obtained and then posting on their blogs the text of private correspondence exchanged among the ACI and its attorney.

A request has also been made to Bishop John Chane of Washington to review the actions of one of his staffers in the anti-ACI campaign. The dispute centres around e-mails published by Canon Harris and Ms Russell though written and exchanged by the ACI leadership on the crafting of a position paper entitled the “Bishops’ Statement on the Polity of the Episcopal Church”, released last month by the ACI and subsequently endorsed by 14 bishops.

Priests “publishing the private e-mails of bishops is a matter of grave pastoral disorder,” ACI member the Very Rev Philip Turner, former Dean of the Berkeley Divinity School, at Yale charged. However, writing on the Integrity blog website, Ms Russell applauded the “outing” of the ACI, saying the Bishops’ Statement was an “unprecedented power grab by anti-gay bishops” that should be made known to the wider church.

The ACI case will likely test the free speech limits of clergy blogs and amateur church news gathering. The explosive growth of the internet, which has seen many clergy turn to blogging in recent years, has not been matched with a code of conduct that draws the line between libel, copyright theft, defamation and aggressive reporting with a priest’s obligation to engage in moral and civil conduct.

A distinguished group of theologians and lawyers within the Episcopal Church, the ACI is on the centre-right of the church’s ecclesiological spectrum, opposing the secession of the dioceses to their political right, but also opposing as “uncanonical” the methods used by Presiding Bishop Katharine Jefferts Schori to their left to fight the breakaway groups.

Over the past year the ACI has published several papers and legal commentaries criticizing the presiding bishop’s claims to metropolitan authority over the bishops and dioceses of the Episcopal Church, and late last year began work on a paper restating the church’s traditional teachings on ecclesiology and church order. On April 18 and 19, a draft of the Bishops’ Statement and 13 emails went astray, passing into the hands of liberal activists who published extracts on April 21. Under US Federal and State law, the Bishops’ Statement and the emails are subject to copyright protection. The Electronic Communications Privacy Act of 1986 prohibits “intentionally intercept[ing], endeavour[ing] to intercept, or procur[ing] any other person to intercept or endeavour to intercept, any wire, oral, or electronic communication.” Additionally, the ECPA expressly states that an intercepted communication does not lose “its privileged character.”

The publication of the e-mails produced a firestorm of controversy from the Episcopal Church’s left. The Chicago Consultation, along with several other progressive groups, condemned the Bishops’ Statement saying the paper’s conclusions abandoned the “historical polity of the Episcopal Church and provide support to lawsuits that drain the church’s resources for mission and spirit for ministry.”

Liberal church bloggers also turned to ad hominem attacks on the ACI and the bishops who endorsed the document. Ms Russell labelled the bishops “cretins” while the former editor of the Episcopal Women’s Caucus newsletter, Mrs Katie Sherrod denigrated the Statement’s sole female signatory.

“All the writers of these e-mails are men, but there is one female bishop signed on as a Communion Partner. That would be, to the surprise of no one, Bishop Geralyn Wolf of Rhode Island, also known to many in the Anglican Communion as an honorary man,” Mrs Sherrod wrote on April 22.

The ACI’s initial response to the publication of the e-mails was that there was a “mole” within the group. However an investigation carried out by a private investigator on behalf of the ACI, which has been seen by The Church of England Newspaper, details a chain of events that began with an accident, but was soon consciously exploited by liberal activists.

The investigator’s report concluded the e-mails made their way outside the closed ACI circle when one individual mistyped the e-mail of the Bishop of Western Louisiana, the Rt Rev D Bruce MacPherson. Rather than typing DBM3WL@ followed by the name of the internet service provider or ISP, DMBE@ with the same ISP was inadvertently added to the “cc” line of the email. At least 12 more e-mails over the next two days were sent to DBME, an address belong to a Honolulu physician and gay activist named Dr David B McEwan. Requests for comments or clarification sent to Dr McEwan’s email address by the investigator and CEN were not answered. However, the investigator’s e-mails to the DBME account were forwarded to the e-mail address of a Hawaiian union organizer who is also active in pro-gay causes. The tracked e-mails were then forwarded and read on blackberry device linked to an IP address maintained by the Episcopal Diocese of Washington.
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The Electronic Communications Privacy Act of 1986 prohibits “intentionally intercept[ing], endeavour[ing] to intercept, or procur[ing] any other person to intercept or endeavour to intercept, any wire, oral, or electronic communication.” Additionally, the ECPA expressly states that an intercepted communication does not lose “its privileged character.”

Under the law, is it “intercepting” an electronic communication if you get it by accident as a result of a typo on the sender’s part? I’m no lawyer but I’m going to guess that it isn’t. Having said that, I think the charge of “conduct unbefitting” is appropriate for both the release of a communication that was obviously not intended for the recipient, and the nature of the comments that were made after the info was published.

Karen:  I would tend to agree.  Similarly, privilege does not prohibit someone from using the information if they chance across it - it simply prohibits someone from being forced to divulge the information.  However, I think it rather unseemly for Russell, Harris, et.al. to have acted in the way they did, especially when there was nothing nefarious that was being divulged, and I think it definitely conduct unbecoming clergy.  But then, if one had to discipline every TEC clergy that crossed that line…

Karen Younge - 28 May 2009 12:06 AM

The Electronic Communications Privacy Act of 1986 prohibits “intentionally intercept[ing], endeavour[ing] to intercept, or procur[ing] any other person to intercept or endeavour to intercept, any wire, oral, or electronic communication.” Additionally, the ECPA expressly states that an intercepted communication does not lose “its privileged character.”

Under the law, is it “intercepting” an electronic communication if you get it by accident as a result of a typo on the sender’s part? I’m no lawyer but I’m going to guess that it isn’t. Having said that, I think the charge of “conduct unbefitting” is appropriate for both the release of a communication that was obviously not intended for the recipient, and the nature of the comments that were made after the info was published.

At least they are not accusing Dr. McEwan of deliberately making his email addy look like Bp McPherson!.  What do we think the chances are that a misspelling would divert these letters to a gay activist!  Astronomical at the least, Providential perhaps. Unless the ACI and the Bishops are ashamed of what they said in those letters or the letters actually reveal nefarious activity then they should say thank you for the free publicity. 

Does it rise to conduct unbecoming?  James is right that there might be a lot of presentments made on that basis.  Probably with no fruitful conclusion except to waste more money or exhaust intake officers.  The letters and materials weren’t stolen or “intercepted” they were misaddressed. 

Finally it would have been nice if people had made as much fuss about the defamatory and calumnous “Choose this Day” as they have about some of the rhetoric on the progressive end.

I admire the ACI for making a complaint, but the truth is I see very little motivation for the addressed bishops to do anything but ignore it. There will be no consequences.

Michael Russell - 28 May 2009 09:05 AM

Karen Younge - 28 May 2009 12:06 AM

The Electronic Communications Privacy Act of 1986 prohibits “intentionally intercept[ing], endeavour[ing] to intercept, or procur[ing] any other person to intercept or endeavour to intercept, any wire, oral, or electronic communication.” Additionally, the ECPA expressly states that an intercepted communication does not lose “its privileged character.”

Under the law, is it “intercepting” an electronic communication if you get it by accident as a result of a typo on the sender’s part? I’m no lawyer but I’m going to guess that it isn’t. Having said that, I think the charge of “conduct unbefitting” is appropriate for both the release of a communication that was obviously not intended for the recipient, and the nature of the comments that were made after the info was published.

At least they are not accusing Dr. McEwan of deliberately making his email addy look like Bp McPherson!.  What do we think the chances are that a misspelling would divert these letters to a gay activist!  Astronomical at the least, Providential perhaps.

If I were a novelist I’d be scared to make my plot turn on such a remote probability. It’s the most unlikely coincidence since Jane Eyre was saved from starving on the moor by people who later turned out to be her cousins. 

(snip) Finally it would have been nice if people had made as much fuss about the defamatory and calumnous “Choose this Day” as they have about some of the rhetoric on the progressive end.

I have never seen “Choose this Day”. Does it call its opponents “cretins”, “honorary men” and the like? If so, I agree that it deserves the same rejection as the name-calling by various commenters about the Bishops’ Statement.

Re: Karen in #1.  I think accidental receipt does qualify, though I don’t know about the laws.  (And I seriously doubt that ACI is really very concerned with civil law here.)  The reason I say this is because those little automatic lines you get from virtually all lawyers’ emails, as well as, nowadays, some clergy emails, usually include something like the following:

If you arenot the intended recipient, be aware that any disclosure, copying, distribution or use of the e-mail or any attachment is prohibited.  If you have received this email
in error, please notify us immediately by replying to the sender and deleting this copy and the reply from your system.

In other words, opening someone else’s mail is illegal even if it accidentally got sent to you.

Karen Younge,

I think James may be in error in his statement. I suspect that Sam Keyes is correct in stating:

Sam Keyes - 28 May 2009 12:19 PM

In other words, opening someone else’s mail is illegal even if it accidentally got sent to you.

I also strongly suspect that relaying an accidentally received privileged communication, or publishing it, may be punishable under Federal law.

As to its unseemliness, I honestly wonder how anyone could question such a judgment. Further, invidious comparisons to other public communications, including unsubstantiated assertions of defamation, are, quite frankly, irrelevant. The misconduct of a person calling himself or herself a Christian minister is in no way justified by the allegedly defamatory actions of another person, irrespective of the latter’s actual guilt or innocence on that charge. That is a stratagem employed by young schoolchildren, and ought not to be countenanced in their elders.

Finally, in answer to your question about Choose This Day

Karen Younge - 28 May 2009 11:25 AM

Does it call its opponents “cretins”, “honorary men” and the like?

I have only recently viewed it, and it does not engage in the casting of such juvenile epithets, nor does it even address individuals by name. To the best of my recollection, and to the extent it criticizes TEC, it focuses rather exclusively on the words and actions of persons in TEC, largely without focusing on specific individuals. I believe we still have a copy which I would be glad to lend you if you are curious.

Pax et bonum,
Keith Töpfer

Keith Toepfer - 28 May 2009 02:04 PM

Karen Younge,

I think James may be in error in his statement. I suspect that Sam Keyes is correct in stating:

Sam Keyes - 28 May 2009 12:19 PM

In other words, opening someone else’s mail is illegal even if it accidentally got sent to you.

I also strongly suspect that relaying an accidentally received privileged communication, or publishing it, may be punishable under Federal law.

As to its unseemliness, I honestly wonder how anyone could question such a judgment. Further, invidious comparisons to other public communications, including unsubstantiated assertions of defamation, are, quite frankly, irrelevant. The misconduct of a person calling himself or herself a Christian minister is in no way justified by the allegedly defamatory actions of another person, irrespective of the latter’s actual guilt or innocence on that charge. That is a stratagem employed by young schoolchildren, and ought not to be countenanced in their elders.

Finally, in answer to your question about Choose This Day

Karen Younge - 28 May 2009 11:25 AM

Does it call its opponents “cretins”, “honorary men” and the like?

I have only recently viewed it, and it does not engage in the casting of such juvenile epithets, nor does it even address individuals by name. To the best of my recollection, and to the extent it criticizes TEC, it focuses rather exclusively on the words and actions of persons in TEC, largely without focusing on specific individuals. I believe we still have a copy which I would be glad to lend you if you are curious.

Pax et bonum,
Keith Töpfer

I guess apostate, heretic, alien, unchristian, foreign etc do not rise to the level of defamation. ah ewell

Well Michael I guess that’s why name-calling shouldn’t come into it.  The question is whether it is ever fitting to publish someone else’s mail. 

Though I think that Keith has a point:  calling someone a cretin is different from calling them a heretic.  It may feel the same, but Christians should be able to label certain things as heresy (like the statement, “Jesus was not God”), whereas calling someone a cretin is all about saying just how much you dislike them.  Unless, of course, Susan Russell meant literally to imply either that the CP bishops have low IQ’s or that they are (to use an obsolete definition) “handicapped because of congenital thyroid deficiency.”  Somehow I doubt it.

A request has also been made to Bishop John Chane of Washington to review the actions of one of his staffers in the anti-ACI campaign.

Why is this request being made?  Are they referring to Canon Jim Naughton?  If so, what are they accusing him of?

In Christ,
Shawn

I confess that I was speaking off the top of my head, and I really have no good idea of what privilege actually does protect under the law.  I am going back to warnings received in my legal education that if you blabber around privileged information, you can’t then demand that others protect what you failed to protect yourself.

Shawn - what the ACI is wanting investigated is the knowing circulation of privileged information.  In other words, if you accidentally sent to me via email confidential information about one of your clients (you are a counselor, right?) and I noticed that this client is connected to a political party which I oppose, and then I knowingly forwarded that confidential information around to others in a bid to discredit that client of yours, then what are the consequences?  What the ACI is suggesting is that (whether or not any civil or criminal laws were actually broken) clergy ought not to knowingly circulate confidential information around.  This is “conduct unbecoming” a clergy person, which is a disciplinary offense under TEC canons.  The bishop in charge of that clergy person has the power to discipline for the offense.

I am not sure who in the EDOW, the ACI is referring to.  Whether it is Jim Naughton (probably a good guess), the charge would be that s/he knowingly published privileged and confidential information which they knew they did not have permission to publish.  The ethical thing to do would have been to delete the messages and inform the original sender.  What the EDOW person did was to act unethically - thus “conduct unbecoming of a clergy”.

Hi James,

I was asking for specific information, not an explanation.  But thank you anyway for the explanation.

The analogy you attempt to make with the counseling field (and I would add the legal field) is an incorrect one.  These persons were not clients of each other (whether therapeutically or legally), nor were they acting as priest and parishioner in terms of that level of confidentiality.  They were colleagues who were orchestrating a means of disseminating this information and that orchestration got leaked.  It happens with the press all the time, except it wasn’t the press it was clergy persons. 

But of course, there will be a big hooflah over it…just to get more adrenaline flowing. 

In Christ,
Shawn

So basically I’m allowed to read your private emails unless they involve an explicitly confidential arrangement?  I don’t think that works.

Mr. Strout,

You wrote (in part),

Shawn Strout - 28 May 2009 06:23 PM

These persons were not clients of each other (whether therapeutically or legally) ….

At the risk of seeming impertinent, may I ask on what basis you make that assertion? The reason that I ask is that I have very good reasons to believe that attorney-client privilege was indeed involved, among them that the earlier ACI statement explicitly states such to be the case. I can only conclude that you are making a voluntary (and unfounded) assumption.

Pax et bonum,
Keith Töpfer

P.S. For the record, should it not already be known, I am not an attorney, nor am I a party to the emails in any capacity.

Shawn:  It is my understanding that at least one of the leaked emails was between a clergy member and his attorney and so they were privileged information.  Thus there very much was a client relationship going on.