Sunday, January 18, 2009

The Blackberry 

Barack Obama is going to keep getting and receiving personal emails, spam included, because he wants some means to bypass the gatekeepers. The lawyer in me says "bad idea, man," but the executive says "go for it, because you have to stay as close as you can to the customer and avoid the perils of groupthink." The executive ought to win, post-Watergate Presidential Records Act of 1978 notwithstanding.

I continue to think, however, that the Republicans are missing a great stunt: They should sponsor legislation that creates a statutory privilege under the Presidential Records Act for email, text, and IM from a president that are not directly related to giving orders and directives and are substantially "conversational" in nature. Yes, we might miss out on the next opportunity to tie up an administration with litigation and some historians would complain, but it would give our president the ability to use modern technology without worrying that every word might be used against him politically or legally. Meanwhile, Republicans would be doing three useful things all at once. First, they would force the Congressional Democrats to say that Barack Obama's emails should not be privileged, which may well have some gotcha value in the future. Second, they would be making arguments that frankly ought to apply in other contexts, such as in civil litigation discovery, and would thereby lay the argumentative groundwork for a different legal attitude toward digital conversation. Finally, if by some miracle the privilege passed it would be available to protect future Republican presidents, who generally confront more vexatious litigation than Democratic presidents (Clinton being the big exception).

MORE: Ezra Klein and Matthew Yglesias agree (except for the part about the Republicans), which I suppose makes the idea suspect. No matter, I'm still for cleaning up the Presidential Records Act, which was enacted long before digital technologies came into regular use. Back at them, though, with this point: If certain of these communications ought to be privileged because they are, essentially, conversation such as one would conduct on a phone rather than "records" that one would have committed to paper before 1985 or so, then why ought not the same logic apply to discovery in civil lawsuits? I say it should. Matthew and Ezra, what say you?


By Blogger Christopher Chambers, at Sun Jan 18, 04:40:00 PM:

Did you bring this up b/c you and you're ilk are utterly apoplectic/wretching over the concert at the Lincoln Memorial (free on HBO)? The Boss, Bono and Pete Seeger singing This Land is Your Land? Hell, to rub it in they should have brought up the Dixie Chicks. I suspect there are even some Southerners out there in wingnut land who've forgotten where the Lincoln Memorial even is.
Oh well, no Toby Keith and Charlotn Heston out there today...

...frankly other than an email from Malia saying "hey daddy, the Secret Service beat up yet another little white kid who made fun of my braids and rows and said they were 'unAmerican.' Tell the chef I want ravioli for dinner after I finish my homework'" I don't think they'll be any "gotcha" moments. Those days are over. Change, remember?  

By Blogger Viking, at Sun Jan 18, 04:48:00 PM:

If O is transmitting using public airwaves, the transmissions should be interceptable not only by us but by foreign governments.

And my understanding of the federal wiretapping statutes is that unless an actual wire is involved it's not protected.

I don't executive privilege would apply to things that are made publicly available.

So unless O is a a lot smarter than I think he is, I would expect some of that stuff to become public record unless they are going to figure out how to super encrypt that blackberry.

And with regards to encryption we all know how safe that is.  

By Anonymous Anonymous, at Sun Jan 18, 05:51:00 PM:

CrackBerry encryption is very good. OTOH I like the idea of considering email, and particularly text msgs as conversational communication vice official records. This would be a good time to put it in place.  

By Anonymous socalmike, at Sun Jan 18, 08:30:00 PM:

I disagree - the use of email over a public line (like on a Blackberry) by a President is problematic. If they allow that, then all of those emails are public property, and we can read them. I don't like it. Like CC said, those transmissions are interceptable. Bad idea.  

By Blogger Dawnfire82, at Sun Jan 18, 08:45:00 PM:

"And my understanding of the federal wiretapping statutes is that unless an actual wire is involved it's not protected."

Then you understand wrong. A training exercise dealing with electromagnetic transmissions at an electronic warfare school I attended in '07 was virtually worthless because they had to comply with privacy law. There used to be exceptions for military training exercises, but the ' We Love the Military... Really' Democrats who took over in '06 deleted them.  

By Blogger Viking, at Sun Jan 18, 09:48:00 PM:

Spent some time reviewing the statutes tonight, and DF is correct regarding modern cell phones. The open frequency transmission of older analog phones were an issue, so I guess I was operating on an anachronism.

While scanner technology which intercepts cell phones can not be sold or imported for sale in the US, it is still relatively easy to obtain internationally. There are also some newer ways of using an SMS message to send a command to cell phones that allows people to listen in via a conferencing protocol without the phone owner's knowledge. So interception, but for the law, is seemingly not difficult.

Overall, I know that the NSA spends an awful lot of money figuring out how to do traffic analysis and listen in on these transmissions, so I would not have a lot of confidence in readily commerically available phones. It varies by state by state whether your records belong to you.

As I see it, the problem for O is even if his equipment is sufficiently encrypted, the receiver may not be. I still think there is a security issue here, unless he is on a secure totally encrypted network.  

By Anonymous Anonymous, at Sun Jan 18, 10:55:00 PM:

I think Obama needs to issue an executive order applying the Records Act to Congress and set the stage for a real discussion.  

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