There have been countless articles today on Barack and his Blackberry. It’s become obvious, now that President Obama has completely disregarded any previous concerns regarding whether or not his missives might later become public record.

If you remember from last week, I spoke directly to not just the security aspects (since other blogs at the time had very thoroughly covered that topic), but the legal aspects of Barack Obama carrying a BlackBerry or other smartphone during the duration of his presidency.

Here’s the backstory again, in case you missed it:

If You Don’t Know About Executive Order 13233, Read This
It actually all goes back Nixon. When Nixon was under fire for doing the things he was doing wrong (like destroying records of wrong-doing), Congress passed a law mandating that records of presidential communications must be kept intact for processing by national archivists and historians after the president leaves office.

imageThe law states that after the archivists receive the materials, it should be made available to the public no less than 12 years later.

As the Wikipedia states on the matter, “thus, the presidential papers of Ronald Reagan were due to be made public when George W. Bush took office in January 2001.”

Of course, if you’re a sufferer of Bush Derangement Syndrome, you’re probably aware that one of the first acts of President Bush was to further prevent the records of President Reagan from becoming public with two successive claims of executive privilege, followed by Executive Order 13233 in early 2002.

E.O. 13233 had the net effect limiting all access to presidential communication pertaining to “military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisers.” In other words, everything but what he’d probably post on Twitter anyway.

The other important thing you need to know about Executive Order 13233 is that while campaigning for president made the promise to get rid of it, and restore the public’s access to presidential records as per Congress’s intent in 1974.

And of course, if you paid attention to the news at all yesterday, President Obama and the administration made a dog and pony show out of signing his first four executive orders. The most prominent one, of course, was the closing of Gitmo Bay Detention Area, but no less significant to most of his ardent supporters is the Executive Order which rescinded E.O 13233.

I’m Popular, but Not That Popular
Clearly no one in the Obama administration is a big reader of this website, or perhaps the President’s addiction to the Blackberry is simply so strong he’s ignoring all legal counsel on this one. The bottom line is, here, by rescinding this order, though, he’s opened up every text message and email sent to and from the device he carries to public review, and he won’t be able to claim executive privilege (or more accurately will have to sue for executive privilege) to keep the messages private.

image All of this ignores as well the logistical issues created by this.  By federal law, deleting a message could be considered destroying records, which is a big no-no due to the Nixon administration. What if he gets a spam message … is he now legally obligated to keep it?  It sounds ridiculous to say yes, but the way the laws are now written, it definitely looks like it.

Beyond that, there’s the even a larger nightmare looming down the road – the archivists who’ll have to sift through what could be tens of thousands of messages. I’ve had my GMail account right about since the service launched, which is a little more than four years ago. Currently sitting in my inbox is 28,834 messages.

I can scarcely fathom going through them myself, and I have the ability to skim them and tell if they’re worth keeping or not. A fresh set of eyes doesn’t have that intuitive memory, and will need to do a lot more than skim. I highly doubt that the system is set up for that sort of volume.

What Are His Solutions?
image I’ll skip the possible constitutional issues that have been created by denying former presidents their executive privilege since I’m not a constitutional scholar.

It’s almost beating a dead horse, but like I said in my last post on the topic, rescinding E.O 13233 was probably a mistake, particularly when it clearly doesn’t factor in the existence of new technologies.  It’s very reminiscent of Congress trying to regulate YouTube, Twitter and Qik using old House franking rules designed to regulate postal mail communication.

President Obama’s decision to make this one of his first moves as Commander-in-Chief without consulting with someone who is at least savvy of the legal and technological implications floors me, particularly given all the credit he’s been heaped for being so tech savvy himself.

Am I missing something? Is there a magical line in his new executive order that I’ve overlooked that takes care of this? If not, this is an issue which will c
ome back to bite the Obama administration down the line.

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