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Freedom to Backstab

Nobody disputes these successes, and many civil-liberties experts I talked to said Romero’s record in this regard makes his critics seem, as constitutional lawyer Floyd Abrams says, “overwrought and misguided.” But the first in a string of minor-sounding scandals arrived a few months into his tenure, in the guise of an embarrassing but unavoidable gaffe, only to grow over the ensuing years into a much-dissected cancer on Romero’s leadership.

Early in 2002, at a time when Romero was still enjoying a honeymoon with his board of directors, a reporter for a small legal periodical noticed a technical glitch in the ACLU’s Website that, for a time, published the names and e-mail addresses of people who had placed orders for ACLU tote bags and the like on a page accessible to the public. It was a potentially embarrassing episode—coincidentally, a few months earlier, the ACLU had sought stiff penalties against Eli Lilly for inadvertently posting the e-mail addresses of Prozac users. But the ACLU’s error belonged to an outside firm that hosts the group’s online presence.

Once informed of the breach, the contractor corrected it immediately, and the ACLU contacted each of the 91 customers whose information was disclosed, apologized, and offered them free merchandise (courtesy of the hosting firm). But a month or more later, lawyers at the Internet Bureau of the New York attorney general’s office began a formal probe of the episode and sought a sizable fine from the ACLU. What goes around went around.

“Let’s say he lied to shield his mother from the pain of seeing him publicly embarrassed. We would still be obliged to acknowledge his misconduct and hold him accountable for it, in order to protect the ACLU.”
—Wendy Kaminer, former ACLU board member

“I give them a lot of credit,” says Barry Steinhardt, the ACLU’s program director for technology issues, who worked with then–Attorney General Eliot Spitzer’s lawyers. “We believed they were doing the right thing, and they didn’t pull any punches.” Romero bargained the fine down from $100,000 to $10,000, which the hosting firm agreed to pay. The mini-crisis seemed to be averted.

But Romero kept his board—a notoriously nettlesome group of 83—largely in the dark, nor did he hire outside legal help. Given the seriousness of an investigation of this sort, this seems like a curious course of action.

The problem was that the agreement the ACLU signed with the attorney general’s office includes a standard requirement to deliver copies of the agreement to all board members within 30 days. Steinhardt (who is a nonpracticing lawyer) says the pattern of commas in that clause wrongly convinced him they were obliged to alert only individuals with direct Website oversight, not all board members. That’s what he conveyed to Romero.

This might have ended as a story about punctuation but for what happened next. According to a memo Romero wrote, a staff member in the ACLU’s archives department flagged that sentence months later. She alerted a top administrator, another nonpracticing lawyer named Karen Delince, who advised Romero of his need to inform his board.

In a circumspect interview arranged through Romero, Delince tells me that Romero disagreed. “It was astounding to me that there could be a dispute about what the language said or meant, but apparently there was,” she says. “I wrote him a memo hoping that once he saw the actual language right in front of him, it would become clearer to him,” she says, and told him that, if he was unsure, he should seek outside counsel.

Romero explained to me that he was reluctant to tell his board simply because wanted to spare them unnecessary paperwork. “There are lots of documents I sign that I don’t necessarily give my board copies of unless I have to,” he says.

When the outside counsel’s report came in, it backed Delince. “Sure enough,” Romero tells me with a shrug, “Barry read it wrong.”

Romero finally disclosed the matter during the June 2003 meeting of the board, five months late. He apologized for not keeping channels with the board open, those present say, but he did not volunteer that the deadline for telling them had passed. In fact, the agreement copy he gave them had no date on it at all, which could have led to the conclusion that the deal had just been struck and the board was being informed in a timely fashion.

Almost everyone was satisfied that lessons had been learned. But not Michael Meyers. For two decades, Meyers has been a cantankerous board member who was elected by his peers to the board’s eleven-member executive committee. A lawyer by training, he is executive director of the New York Civil Rights Coalition, a nominal group he founded, and a sometime columnist for the New York Post. His warning bells went off. “What sort of nonsense is that?” he says. “Why would you hire a law firm to tell you whether or not you should tell the board what you’re doing?”