Who doesn’t love a good conspiracy theory? Obama has barely been in office six months and we’ve heard, alternately, how AmeriCorps is basically a Hitler Youth program; routine (and abnormally prescient) DHS reports are worse than the Fairness Doctrine; now, courtesy RedState, we learn that when the White House reads e-mail, it’s basically conducting warrantless wiretapping.
How, exactly? Interesting question. Earlier this week, the White House asked supporters of Obama’s health care plan to report the latest crazy rumors circulating about it, so the White House can correct them. In the context of the request, at the White House blog, the idea behind it is quite clear: Republicans, doing what they do best, are feeding disinformation to voters to scare voters into opposing the health care plan. Out of ideas, and without an intelligent argument to make in opposition, they’ve got to do something, right? Still, the request is unfortunately phrased, to sound more draconian than it actually is:
There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care. These rumors often travel just below the surface via chain emails or through casual conversation. Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to email@example.com.
Not content to simply capitalize on this poor choice of words to build hysteria, RedState took the next step, and suggested that the White House’s plan was illegal.
According to 5 U.S.C. § 552a, United States agencies, including the Executive Office of the President shall, “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.”
The White House may take the position that certain of its offices aren’t subject to the Privacy Act (that is a longstanding Office of Legal Counsel position, see here), but most Presidents instruct their staffs to comply. This will be a [sic] the first significant time the White House has ignored the Privacy Act and may open President Obama up to litigation.
This is another example of the Obama administration ignoring long time precedent when it is no longer convenient for them. And ignoring this precedent lets them collect data on and potential harass individual American citizens.
Two points. First, it’s marvelously hypocritical to rail against Obama’s White House for violating the Privacy Act for “the first significant time,” when it was Bush’s White House, in its first Nixonian grab at executive secrecy, that unilaterally decided that the Privacy Act wouldn’t apply to the White House; and it was Dick Cheney who billed himself as a member of either the executive or the legislative branch, depending on which disclosure law he was trying to avoid. I can’t help but think that Valerie Plame could’ve benefited from Erickson’s sudden discovery of the value of privacy.
Second, and more importantly, the Privacy Act doesn’t apply to the kind of information the White House is soliciting. The operative clause cited in Erickson’s argument, 5 U.S.C. § 552a(e)(7), applies only to “records.” In the statute, this is a term of art, referring mostly to information that names a person and then recites confidential information about them, such as medical history. 5 U.S.C. § 552a(a)(4). It would be quite a stretch to argue that the Act is meant to ban the government from keeping records of a person’s name and text written by them, when that text is lawfully obtained; otherwise, the Privacy Act would essentially ban the White House from checking its own e-mail.
Bottom line, what Erickson is worried about is nothing more than a more official version of the “Fight the Smears” site that was so popular during the campaign — namely, you tell us what you’ve heard, we’ll tell you the truth. If the Republicans’ tactics have brought the White House to that pass, they might consider, instead of overreacting and screaming “tyranny,” just telling the truth, for once. In honor of the American soldier.