Obama should just say ‘No’ to aides who, worried about FOIA, say he must give up beloved Blackberry

By Peter Scheer

Barack Obama, so far as we know, has two addictions: cigarettes and his Blackberry cell phone. While his wife leans on him to give up the cigarettes, his staff aides have been insisting he retire the cell phone.

Obama during the presidential campaign was visibly tethered to his Blackberry, its text and email functions allowing him to receive news and advice unfiltered by political handlers (much to their frustration). Obama’s Blackberry was his means of piercing the communications bubble that inevitably descends on presidents, insulating them from unwelcome news and critical advice.

Since his Blackberry addiction apparently helped keep Obama grounded during the long slog to the presidency, why give it up now? Not primarily for security reasons: while protecting a president’s cell from hackers and foreign intelligence services would be difficult, it is doable. Rather, the Blackberry had to go, according to the New York Times, because the prodigious digital record it creates would be subject to public scrutiny through Freedom of Information Act requests and other disclosure requirements.

The Blackberry didn’t pose such problems for Obama as a US Senator because Congress, characteristically, exempted itself from the FOIA. Although the executive branch is often and justly criticized for failing to comply with the FOIA, it is a model of transparency compared to Congress, which is so shamelessly opaque that it allows members to edit (one might say falsify) legislative records to make themselves look good.

But back to the President-elect’s Blackberry . . .

Obama will need all the help he can get in managing the presidential workload. It hardly seems in the public interest to deprive him of communications devices and productivity tools that millions of Americans take for granted in their own lives. Does Obama really have to give up his beloved Blackberry? I think not.

Legally speaking, the status of communications from or to President Obama–that is, whether or not they will end up in the public sector–must be decided on the basis of their content, not the type of device used to send and receive them. If a communication is determined to be a public record, that conclusion will be the same whether the message was delivered by email from a desktop computer in the White House, by IM using a Blackberry, or on parchment sealed with a wax stamp.

Conversely, presidential communications that needn’t be disclosed, either because they’re personal and private (e.g., an intimate message from Obama to his wife) or because they are exempt from the FOIA and like laws (e.g., confidential legal advice from the attorney general), don’t fall into the public domain just because the files happen to reside in a hand-held wireless device.

Giving up the Blackberry gains Obama protection only in the limited sense that 1) he will create fewer records than if he used it, and 2) the records he creates will be more likely to be vetted by aides and therefore cleansed of potentially embarrassing content (although both “gains” will be lost if, like a smoker who switches to filtered cigarettes, Obama ends up merely replacing his Blackberry with a laptop.)

These putative benefits hardly seem worth it. If ever there was a public official who doesn’t need a censor, who is able to choose his words carefully even in candid moments, who is acutely aware of the potential impact of what he says and edits himself accordingly–it is Obama.

Like other politically ambitious graduates of Harvard Law School, Obama learned never to put in writing something he wouldn’t want to see quoted on the internet or in major newspapers. If tomorrow the press were given access to all the email and text messages sent by Obama over the last two years, there would be, I suspect, few real surprises among the historically rich details.

Obama should reject the advice of his aides and resume use of his Blackberry for essentially all communications not requiring a high degree of security. A further recommendation: He should promise to make public all his communications on the Blackberry going forward.

Such a commitment would establish Obama’s open-government credentials while earning him considerable capital with the news media. Moreover, the contrast with Capitol Hill secrecy could be used to put pressure on Congress to repeal its indefensible exemption from the FOIA. Shame can be a powerful incentive for reform.

As addictions go, Obama’s Blackberry dependence is a pretty good one. Let’s hope he stays hooked.
Peter Scheer, a lawyer and journalist, is CFAC’s executive director.