August 6, 2009
Fishy history lesson
You may remember Evan Coyne Maloney from Indoctrinate U, his sharp and important film about intolerance on our nation's campuses (full disclosure -- I contributed to the due diligence on that film and have helped promote it through the Moving Picture Institute). Anyhow -- Evan's interest in campus politics has a lot in common with mine: If you don't learn how to reason, how to think, how to evaluate multiple arguments and competing sources to come to your own conclusions, you will be a tool of the powerful and a profoundly un-free person. There is a very good argument to be made that higher ed is failing to educate for citizenship, insofar as that involves teaching people the critical thinking skills described above, plus equipping them with core knowledge about their world (from math to history to civics to science).
As I have been arguing here, our government is cynically assuming that Americans don't know jack about what their rights are--and that therefore, Washington can rewrite the rules. It's a calculated risk, and a sensible one, if you know anything about what is getting taught in K-12 and in college these days. But it depends on ignorance being maintained--on educators colluding in the government's disrespect for genuine freedom, which is messy, and involves debate, multiple viewpoints, and dissent. And it's fragile: it can be exploded with a simple history lesson, or a well-placed question, or both.
The Obama White House may be breaking the Privacy Act of 1974 by asking citizens to report "fishy" political speech.On Tuesday, Macon Phillips, President Obama's Director of New Media, wrote on the White House blog asking citizens to rat out fellow citizens who are spreading "disinformation" about Obama's plans for more government control over the health care system. Phillips wrote:
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 flag@whitehouse.gov.
One wonders, what constitutes "fishy" speech or "disinformation"? Is it anything that runs counter to what the White House wants you to think? And what, precisely, is the White House planning to do about someone who’s speech has been "flagged"?It turns out, even asking for citizens to report on each other may be illegal. According to the Department of Justice, "the purpose of the Privacy Act is to balance the government's need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy stemming from federal agencies' collection, maintenance, use, and disclosure of personal information about them."
Further, anything is considered a "personal record" if it identifies an individual (an e-mail address would qualify), and "federal agency" specifically includes "the Executive Office of the President."
I'm no lawyer, but it sure sounds like the White House is violating the law by asking people to snitch on their friends and neighbors for engaging in "fishy" political speech. Anyone want to try this one in court?
I'd love to hear from the lawyers out there. And I repeat--where are the academics? They cry "McCarthyism" so readily--even unto comparing criticism of academic culture to government sanctioned persecution (don't get me started on sourcing that--the comparison has become a stock gesture in the years since 9/11). But now, academics say nothing. Are they hoarse?
UPDATE: More from David Hardy, a lawyer with plenty of Washington experience:
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 S552a(i) include fines of up to $5,000, not only for gathering forbidden data, but for disclosing it or maintaining an undisclosed system.
Alternatively, Byron York explains, a "dissident database" of the sort proposed may well be legal--but no less troubling for all that.
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Comments:
I'm with you on this one. I've been deeply troubled by the mass emailing I've received that spreads vicious lies about the health care program and other Obama policies and issues (inlcuding the Birthers and their nonsense). But asking citizens to snitch and keeping a database of such snitching is creepy and wrong.
At the same time, the FBI has been collecting files on whoever they want for as long as they've been around. And it's not like they don't pay informers, snitches, and various others on the owing-end of the karmic balance.
It's scary when a government can be so up-front about snooping. But let's not pretend it hasn't been snooping all along.
Oh, come on. This is simply an extension of the Obama campaign’s fact check operation from last fall. Nobody’s trying to build a “dissident database”; the administration simply wants to respond to the chain e-mails and various websites that are—in their view—distorting the facts on health care. They also want to provide answers directly to the citizens who write in expressing concern about whether the president really plans to euthanize grandma and other such nonsense. If the Democrats truly wanted to build a database of those who oppose the president’s health care plan, they wouldn’t need help from average citizens; Google would easily suffice.
And I’m sorry, but just because many of us objected to such egregious constitutional violations as warrantless wiretapping and the erosion of due process doesn’t mean we are obligated to sound the alarms over some benign attempt to respond to scare tactics that are designed to fly under the radar. When President Obama decides to endorse unconstitutional eavesdropping, military tribunals for U.S. citizens, and torture of alleged enemy combatants, check back with us; we’ll be the ones screaming in protest. (And, by the way, in the extremely unlikely event that you are right, and the government begins systematically to audit the taxes of health care opponents, I think you can count on the ACLU and all of its academic backers to rise up in fiery indignation.)
As Mr. Shoemaker said earlier, this is your blog, and you can do with it as you wish, but it is clear that Critical Mass has become a very different place since you decided to go virtually 24/7 with the health care debate. The great value of this blog, in my view, is the opportunity it gives liberals and conservatives to engage in a constructive dialogue without the name calling and dismissiveness that usually attend such online conversations. Nobody doubts that Critical Mass presents a libertarian/conservative view of the word, but there was always a sense of perspective, a sense that the opposition might have something worthwhile to contribute. It was an attitude that made this blog much different—and far more worthwhile—than outlets such as Little Green Footballs and Daily Kos.
For the moment, at least, that has been lost. Snark and name calling replace reasoned dialogue. Opposition arguments are treated as so self-evidently ludicrous that those who hold them can only be fools, charlatans, or dupes. Thuggish behavior by town hall protesters—e.g., attempts to drown out the opposition—is implicitly endorsed. And, in the process, something valuable has been diminished.
It all depends upon whether the White House means by "keeping track" of rumors. If they are compiling lists of the rumors themselves, there's no problem. If they're compiling lists of the *names* of people who are spreading them, that's another matter entirely. It should be noted that nothing in the original blog statement specifically refers to *persons*.
Nonetheless, there are legitimate civil liberties issues here and the White House needs to step up and give a clearer account of what they're doing. And if there is no mechanism for removing names of individuals from lists, there certainly should be. Finally, I agree that it is both alarming and disappointing that many Obama supporters seem not to care, arguing either that 1) this is political war OR 2) Bush did worse.
ScottF wrote:
Oh, come on. This is simply an extension of the Obama campaign’s fact check operation from last fall. Nobody’s trying to build a “dissident database”; the administration simply wants to respond to the chain e-mails and various websites that are—in their view—distorting the facts on health care. They also want to provide answers directly to the citizens who write in expressing concern about whether the president really plans to euthanize grandma and other such nonsense. If the Democrats truly wanted to build a database of those who oppose the president’s health care plan, they wouldn’t need help from average citizens; Google would easily suffice.(my emphasis)
Well, I guess the obvious question is: If Google would easily suffice, why didn't the White House just use Google?
But all this is but a distraction anyway. The first question is whether or not the White House is engaging in an illegal operation.
(In passing, your reassurance that any information gathered won't be used in a nefarious way, and that if it were to be the ACLU would be Johnnie on the Spot to protect us is proof that faith is alive and well in this country.)
Scott, luckily factcheck.org does a fine job of actually checking facts and righting informational wrongs on public policy issues. I suggest that anyone thinking about the health care debate consult that webpage first.
Minerva writes:
"Well, I guess the obvious question is: If Google would easily suffice, why didn't the White House just use Google?"
For one thing, because they are *not* trying to build a database of dissenters. Second, because they want to learn about any new arguments being offered as soon as possible so they can rebut them instantly. And finally, and most importantly, because they want to respond directly to citizens who are concerned that some of the more outlandish charges ("Obama wants to kill Granny") might be true.
"(In passing, your reassurance that any information gathered won't be used in a nefarious way, and that if it were to be the ACLU would be Johnnie on the Spot to protect us is proof that faith is alive and well in this country.)"
Sure, but the faith here is in Occam's razor. Why craft conspiracy theories when the Administration's actions can easily be explained by fairly obvious and pedestrian motivations? They feel like they're falling behind in the PR war and they want to do a better job of answering the opposition's arguments, particularly the more outrageous ones. As a plan to respond instantly to the charges and countercharges flying around the internet, this idea makes some sense. As a plan to create an enemies list in order to round up dissidents (Or perhaps tap their phones? That's so 2003), it would be hopelessly clumsy and inefficient.
Luther, I'm with you on Factcheck.org. Obama's problem is that most people don't go there.
Look, if I were Obama's people, I wouldn't have asked for forwarded emails. I would simply have requested that people send me the particulars so I could respond to them. (Websites, on the other hand, have no reasonable expectation of privacy.) But the idea that this is some covert plot to collect email addresses of people, many of whom loudly and relentlessly voice their opinions in open forums (sometimes forming mobs that trample on the rights of others in the process), strikes me as paranoid in the extreme.
ScottF:
I had no idea that you're both a mind reader and seer, one who can divine the intentions of the administration AND predict the actions of the ACLU.
And yet, I still don't know how you view the question of illegality, which was, of course, the central point of my comment.
"Oh, come on. This is simply an extension of the Obama campaign’s fact check operation from last fall. Nobody’s trying to build a “dissident database”; the administration simply wants to respond to the chain e-mails and various websites that are—in their view—distorting the facts on health care."
There is evidence to support this?
"They also want to provide answers directly to the citizens who write in expressing concern about whether the president really plans to euthanize grandma and other such nonsense."
Who said the president plans to euthanize grandma? The President would no doubt prefer that grandma live a long and healthy life and die in her sleep without ever once having to go to the doctor. He no doubt wishes he had the money to give her quality medical care. Unfortunately he doesn't have much of a plan for getting the money to keep her alive.
"If the Democrats truly wanted to build a database of those who oppose the president’s health care plan, they wouldn’t need help from average citizens; Google would easily suffice."
Really? How would they get it from Google? What would they get? Would they need a warrant? I suspect the idea isn't to build a database per se, the idea is to suppress dissent.
"And I’m sorry, but just because many of us objected to such egregious constitutional violations as warrantless wiretapping and the erosion of due process doesn’t mean we are obligated to sound the alarms over some benign attempt to respond to scare tactics that are designed to fly under the radar."
That would be true if the factual assumptions in the sentence were true, but it has nothing to do with the post, and almost every factual statement you make is, well, open to considerable debate.
"When President Obama decides to endorse unconstitutional eavesdropping, military tribunals for U.S. citizens, and torture of alleged enemy combatants, check back with us; we’ll be the ones screaming in protest."
Okay, but what does this have to do with Erin's point?
"And, by the way, in the extremely unlikely event that you are right, and the government begins systematically to audit the taxes of health care opponents, I think you can count on the ACLU and all of its academic backers to rise up in fiery indignation"
I don't. They won't even know about it. Audits are confidential. Besides how often does the ACLU and all of its academic backers rise up in fiery indignation on behalf of conservatives? I can't remember the ACLU and all of its academic backers rise up in fiery indignation when IRS tried to audit Paula Jones' taxes. It was talk radio that rose up in indignation.
"Snark and name calling replace reasoned dialogue. Opposition arguments are treated as so self-evidently ludicrous that those who hold them can only be fools, charlatans, or dupes."
I follow this blog regularly. They might be an occasional comment that fits within that category, but I haven't seen anything like what you've described on Erin's part.
"Thuggish behavior by town hall protesters—e.g., attempts to drown out the opposition—is implicitly endorsed."
Fiddlesticks.
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