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Don’t Fret Your ‘Fishy’ Complaints About Health Care Reform

Perhaps surprisingly, the administration is not violating any laws by collecting names of people who oppose the president's policies.

by
Clarice Feldman

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August 10, 2009 - 12:23 am
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This past week, Macon Phillips, President Obama’s director of new media announced (under a heading “Facts are Stubborn Things”) that there was a lot of “disinformation” being circulated about the proposed health care plan and asked anyone who received an email critical of it or who “see[s] something on the web about health insurance reform that seems ‘fishy’” to report it to flag@whitehouse.gov.

Several commenters, noting the chilling effect a database of opponents of the White House might have, suggested that a suit might be brought for violation of the Privacy Act of 1974, a post-Nixon statute that prohibits federal agencies from maintaining records on citizens who are exercising their free speech rights to dissent from government policy (5 U.S.C. § 552).

For example, Judge Napolitano, Fox News’ legal analyst, said:

There’s also a statute that requires the White House to retain all communications that it receives. It can’t try to rewrite history by pretending it didn’t receive anything.

If the White House deletes anything, it violates one statute. If the White House collects data on the free speech, it violates another statute [the Privacy Act].

David Hardy of Arms and the Law expounded further on the issue:

Evan Coyne Malone suggests the request may be illegal under the Privacy Act and the Dept of Justice’s statement about its purpose.

As a recovering bureaucrat, I can point to a much, much, bigger illegality under that Act.

5 US Code §552a(e)(7) commands that any Federal agency

“(7) 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;”

Persons posting to the web or sending emails are exercising First Amendment rights. I can’t see how gathering this information is expressly authorized by statute, nor within the scope of an LE activity. It doesn’t get much clearer than that.

{Plus, 552a(e) generally requires that agencies collecting information about individuals into a records system, upon establishment or change to that system, publish in the Federal Register a detailed description of that records system, maintain appropriate security, etc.)

I’d say there are glaring Privacy Act violations here. And the penalties, per §552a(i) include fines of up to $5,000, not only for gathering forbidden data, but for disclosing it or maintaining an undisclosed system.

That sounds good. And when you consider that the Privacy Act was passed to deal with overreaching by a president and his staff, you’d have every reason to suppose that it would forbid the present White House’s plan of action.

You’d be wrong, though. Courts have consistently held that the Privacy Act does not apply to the office of the president and that this was by congressional design, which it is without power to alter. In the most recent such case to my memory, Valerie Plame Wilson v. I Lewis Libby, the U.S Court of Appeals for the District of Columbia Circuit reiterated that “the Act exempts the Offices of the President and Vice President from its coverage.” And “Congress did not inadvertently omit these [ offices] from the Privacy Act’s disclosure requirements.”

Indeed, the U.S Court of Appeals observed that the Supreme Court held in 1974 in Kissinger v. Reporters Committee for Freedom of the Press that the legislative history exempting these offices was “unambiguous.”

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