If true, the activity could constitute a violation of North Carolina’s statute governing interception of electronic communication. Superintendent Mark Johnson’s reaction to the accusations gives legitimate cause for concern over whether DPI is the right agency to investigate.
At issue is how the department obtained a personal text message exchange that occurred in January 2019 between two former DPI employees, both of whom had retired from the department in 2017. That text conversation included confidential information from a meeting of the committee charged with selecting a K-3 reading assessment for North Carolina’s schools.
Superintendent Mark Johnson later deemed the text message evidence of a confidentiality breach serious enough to require cancellation of the procurement process. The RFP process was cancelled at a time when the evaluation committee had recommended the state adopt Amplify’s mClass assessment. When the procurement was restarted, a newly assembled evaluation team changed the recommendation, and Johnson eventually awarded the contract to Istation.
But how did Mark Johnson get his hands on that text message?
Allegations surfaced during a recent Department of Information Technology hearing that when retiring K-3 Literacy Director Carolyn Guthrie turned in her DPI-issued MacBook laptop in 2017, she neglected to log the device out of her iCloud account. As with any such organization, the Department of Public Instruction has a policy that devices of departing employees must be wiped clean. DPI reportedly did not follow that protocol with Guthrie’s laptop, and her personal iPhone text messages continued to sync to the MacBook’s iMessage app for more than a year after her departure. According to deposition testimony referenced at the hearing, Guthrie noticed her phone pairing with another device but did not realize it was her old laptop until she learned that DPI was in possession of her personal communications.
If the allegations are true, that would mean someone at Johnson’s department actively monitored Guthrie’s personal iPhone text message communications using her old laptop. It would mean someone working under Johnson’s supervision made a decision to read through private communications between Ms. Guthrie and her family and friends until finding something that was useful.
When this story broke, both Superintendent Johnson and his Director of Communications Graham Wilson responded to the allegations with ridicule. Johnson joked about his “elite squad of ninjas” and “DPI spy team” in a radio interview, and Wilson made derisive comments to the media about “blogger conspiracies.” Neither expressed a shred of concern about the unethical and potentially criminal activity that might have taken place at DPI.
Despite DPI’s downplaying, the allegations are actually quite serious. North Carolina’s statute on interception of electronic communication, § 15A-287, is a “one party consent” law. It states that, without the consent of at least one person involved in the communication, it is a Class H felony if a person “willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”
Durham attorney T. Greg Doucette says: “In the case of DPI and their snooping on a retiree’s iMessage account, a prosecutor who chose to indict the involved personnel would likely win a conviction.” That’s because, according to Doucette, monitoring communications for an extended period of time meets the definition of “willful,” and neither party to the text message communication consented to the surveillance.
Johnson claimed in a sworn deposition that an unknown individual slipped a paper copy of the text message under the door of Deputy State Superintendent of Early Education Pam Shue. (Shue began working at DPI about two months after Guthrie’s retirement and was involved in leading the K-3 reading assessment request for proposals.)
If Johnson and his staff were actually interested in getting to the bottom of the text message mystery, it should be a simple matter of looking at the internal logs on the MacBook in question to determine when, how, and by whom it was used. Those records would show whether someone was logging into Ms. Guthrie’s account after she was no longer employed at DPI, and they would contain records of print jobs if a screenshot was printed directly from the laptop. If the laptop has been wiped, the time frame for when that occurred would also be very interesting to know.
Does Superintendent Johnson really want to know where the text message came from? Along with dozens of other interested citizens, I filed a public records request in mid-January seeking DPI’s fixed asset inventory logs, which should show where the MacBook was between Carolyn Guthrie’s retirement in 2017 and the 2019 text message. Wilson has yet to even acknowledge receipt of that request, let alone honor it, despite the fact that state law says those records are “property of the people” and compliance with state law is not optional.
There’s a real question about whether someone at DPI broke the law and how high up the chain of command that knowledge of a potential violation of North Carolina’s wiretapping statute goes. Given this situation, it’s difficult to see how DPI is likely to conduct an investigation with the fidelity it deserves. It’s time for another agency with jurisdiction in the matter to get involved.
Justin Parmenter is an educator and K-12 activist from Charlotte. He regularly writes at his site, Notes from The Chalkboard.