Power Line and Byron York are reporting the Office of the President is not subject to the Privacy Act. Some readers disagree, but if they are right, it gets even better. From Byron York: Obama’s dissident database could be secret — and permanent:

In a letter to Obama Tuesday, Republican Sen. John Cornyn wrote that, given Phillips’ request, “it is inevitable that the names, email address, IP addresses, and private speech of U.S. citizens will be reported to the White House.” Cornyn warned the president that “these actions taken by your White House staff raise the specter of a data collection program.”

“I can only imagine the level of justifiable outrage had your predecessor asked Americans to forward emails critical of his policies to the White House,” Cornyn continued. “I urge you to cease this program immediately.”

Senate Judiciary Committee lawyers studying the proposal say that although there is no absolutely settled law on the matter, the White House plan is likely not covered by the Privacy Act, which prohibits government agencies from keeping any records “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.” Therefore, it appears the White House can legally keep records of the emails and other communications it receives in response to Phillips’ request.

Those lawyers also point out that the White House is not covered by the Freedom of Information Act, which means it would not have to release any information on the plan to members of the public who make a request.

In addition, the lawyers say the collected emails likely will be covered by the Presidential Records Act, which requires the White House to preserve and maintain its records for permanent storage in a government database. …

if “fishy” information is indeed collected, as Phillips’ request suggested, the laws involved mean that the information obtained by the White House could not only be secret but permanent. A dissident database, in whatever precise form it ultimately takes, could be around for a long time to come.

The American Center for Law and Justice is monitoring the case. Hopefully, I will hear something from them today:

A very troubling development in Washington – a new attack on the free speech of Americans from the Obama Administration.

Yesterday, Senator John Cornyn (R-TX) wrote to President Obama expressing his concerns about a recent post on the White House blog written by Macon Phillips, the White House Director of New Media.

In his post, Phillips notes “[t]here is a lot of disinformation about health insurance reform out there” both on the web and floating around in chain emails. Phillips states that “[s]ince 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 flag@whitehouse.gov.”

In a nutshell, the White House is asking you to report on your neighbors, family, and friends who disagree with the President’s policy choices on health care. The White House is also implying that you should think twice before sending an email disagreeing with the President, since it might end up being forwarded to them. The White House email address says it all – let’s “flag” those who disagree with us. For what purpose are these individuals being flagged?

In his letter, Senator Cornyn rightly seeks assurances from President Obama that this new reporting program will be “carried out in a manner consistent with the First Amendment and America’s tradition of free speech and public discourse.” He poses several questions, including, “[h]ow do you intend to use the names, email addresses, IP addresses, and identities of citizens who are reported to have engaged in ‘fishy’ speech” and “[w]hat action do you intend to take against citizens who have been reported for engaging in ‘fishy’ speech.”

The First Amendment states, in part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” Our Founding Fathers fought and died for the right to speak openly and freely about the government.

__________
Original Post:

It’s a curious question. Here is what I have found so far (emphasis mine):

The Privacy Act of 1974 (5 U.S.C.A. 552a) is a federal law that places restrictions on the federal government’s collection, use, and dissemination of personal information. As with most comprehensive federal statutes, the act provides general and specific exemptions as well as an administrative appeals process.

The genesis of the Privacy Act can be traced back to 1965, when a congressional subcommittee examined privacy issues. Between 1965 and 1974, other congressional committees held hearings and issued reports on how individual privacy rights were affected by the growth of national data banks and the emergence of electronic data collection and storage. An important catalyst for the legislation was a Department of Health, Education, and Welfare report on government records and computers. The report proposed a “Code of Fair Information Practices” to be followed by all federal agencies and urged the adoption of five core principles: (1) the government should not maintain any secret records; (2) individuals must be able to see what personal information about them is stored and how it is used; (3) individuals must provide prior written consent before personal information collected for one purpose can be used for a different purpose; (4) individuals must be allowed to fix or clarify personal information about them; and (5) organizations that store or use personal data must be responsible for the information’s veracity and must attempt to prevent its misuse.

Congress incorporated these principles into the Privacy Act, which applies to the EXECUTIVE BRANCH of the federal government. The executive branch encompasses administrative agencies, government corporations, and government-controlled corporations. The act does not apply to records kept by state and local governments or by private companies or organizations. Only U.S. citizens and lawfully admitted ALIENS are given rights under the act. Accordingly, nonresident foreign nationals may not invoke the provisions of the act.

Generally, the only materials that are subject to the act are those that are maintained in a system of records. The act defines “records” to include most personal information kept by an agency about an individual. A record contains individually identifiable information, such as data on a person’s education, medical history, criminal history, employment history, or financial transactions. A “system of records” is a group of records from which information can be retrieved by name, SOCIAL SECURITY number, or any other identifying symbol linked to an individual. Most personal information that is kept in federal government files is subject to the Privacy Act. Therefore, the government may not, for example, share medical-history information from a MEDICARE recipient with another government agency without first obtaining the individual’s written consent.

It is unclear to me whether, with regards to the Privacy Act, the Executive Branch includes the Office of the President as exempt. This link implies the answer is the Act does not apply to the Office of the President, but it is clear the statements are only an opinion:

The Privacy Act does not apply to the White House Office, which is also known as the Office of the President.

September 8, 2000

STATEMENT BEFORE THE
SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY
AND HUMAN RESOURCES
COMMITTEE ON GOVERNMENT REFORM
UNITED STATES HOUSE OF REPRESENTATIVES

Good morning, Mr. Chairman and Members of the Subcommittee. I am pleased to be here today to testify regarding the Department’s longstanding position that the Privacy Act of 1974 (“Privacy Act”), 5 U.S.C. § 552a (1994 & Supp. IV 1998), does not apply to the White House Office…

However, the site in question which asks for private information of U.S. citizens who, as the author states, promote “disinformation” regarding health care reform, is a whitehouse.gov site. The author is one Macon Phillips. In which office is Mr. Phillips employed? Assume for a moment the President of the United States authorized such a gathering of information and the holder of that office is exempt from the Privacy Act. If ultimately an agency of the Executive Branch is involved, is seems likely that agency would be in violation of the referenced Privacy Act. Is the Health Czar involved? Is the Health Czar a member of the Office of the President? I’m not even sure what a Health Czar is. As Michelle Malkin points out, there are over 43 (or is it 44 – I lost count) czars in the White House. Which branch of government has oversight of these czars? To whom are they accountable? What about the White House Health Reform Office? Is the later to be equated with the Office of the President?

I am not a lawyer, nor am I a constitutional scholar, but something does seem a bit fishy here. Putting aside the sheer audacity of this data collection, I am left wondering if somebody, somewhere is not in violation of the Privacy Act. I am also left wondering if the POTUS himself is not in violation. Remember, the above statement that he is not is only an opinion. And we all know that famous statement about opinions.

Food for thought.

For additional background see here, here, and here.

Also:

Cornyn Attacks Obama Scheme To “Flag” Dissenters.

Quinnipiac poll: 39% of Americans need to inform on 52%

Obey-mian Representative Democracy

This entry was posted on Wednesday, August 5th, 2009 at 5:47 pm and is filed under General Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.