Don't Fret Your 'Fishy' Complaints About Health Care Reform

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 [email protected]

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.”

Are we then at the mercy of a totalitarian regime gathering up an enemys list? Law professor Eugene Volokh, for whom I have great respect, argues we are not:

There's nothing totalitarian about asking supporters to gather this information. And there's nothing morally contemptible (as the terms "snitch" and "rat" suggest) in passing along this information, if you genuinely think that the information is misleading.

Now of course if you think that the Administration would prosecute your friend for e-mailing you supposed "disinformation about health insurance reform," then indeed you shouldn't help the Administration do it. But, seriously, is that really likely? JammieWearingFool and the Administration's other critics seem not to worry that their criticisms of the Administration will get them thrown in prison, or even will lead to any harassment from the FBI or the like. (To be sure, some criticisms, for instance ones that contain threats against the President, might yield that, but I assume that this isn't what the information reported to [email protected] is likely to contain.) I take it that they think, as do I, that blog posts or e-mails to friends about health insurance reform are pretty safe from legal punishment and governmental harassment. And that makes it pretty likely that alerting people on your political side of the aisle in the Administration will simply lead to public rebuttal. It's hardly "look[ing] more like Castro's Cuba" for that to happen, nor is it "snitch[ing]" or "rat[ing people] out" when someone facilitates it.

Finally, I recognize that it's possible that some "disinformation about health insurance reform" might indeed lead to prosecution or administrative action. For instance if the information appears in messages that urge the support or defeat of a candidate, and those messages are put out by 501(c)(3) tax-exempt organizations, the organization could potentially lose its tax exemption for the electioneering communication. Likewise, there are restrictions (which I agree are quite substantively troubling) on corporations' conveying similar messages related to candidates near election time; violation of those restrictions could lead to legal punishment. But such organizational communications seem already likely to be pretty high-profile, and likely to come to the government's attention in any event. I don't think that someone who gets a possibly tax-law-violating or election-law-violating mass mailing from (say) the Sierra Club and alerts the government to the possible violation can be reasonably said to be "snitch[ing]" on the Sierra Club. The force of the "snitch" / "rat ... out" / "Castro's Cuba" argument, I take it, comes from the suggestion that there's something improper in passing along communications from friends or neighbors -- rather than public press release or fundraising letters from organizations -- to the Administration, which is trying to rebut such communications. And that strikes me as quite mistaken, for the reasons I gave above.

Maybe instead of litigation or “hair on fire” blog posts to each other about a White House snitch program we ought to simply hold the president to his word. During the campaign he said:

To reduce bills rushed through Congress and to the president before the public has the opportunity to review them, Obama "will not sign any non-emergency bill without giving the American public an opportunity to review and comment on the White House website for five days.

Given that the legislation he’s trying to force down our gullets is a work in progress which none of the solons seems to have read in its reported 1000 page format, we ought to demand a full thirty days online to see it before anyone signs it. How does “Don’t sign before thirty days online!” sound as a rallying cry to you?

It makes more sense to me than Pelosi’s imaginary swastika-carrying opponents or notions of a huge enemy database in the White House. As the White House’s Macon Phillips noted, "facts are stubborn things."

What about giving us some?