CNN ‘Expert’ Lamely Claims to ‘Debunk’ NLPC on White House Data Harvesting on Social Networks — EOP Solicitation Number: WHO-S-09-0003 — Strike three for White House on Internet information — Presidential Records Act Amendments of 2009 — Executive Order 13489: Presidential Records


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Submitted by Peter Flaherty on Wed, 09/02/2009

David Gewirtz, who contributes to Anderson Cooper’s blog at CNN, claims to “debunk” our story about White House New Media office plans to collect data from social networking websites.

Our story was based on a document called a “Request for Quote.” Of the document, Gewirtz states, “It’s a publicly available government procurement document, and just for you, I’ve read all 51 excruciatingly boring pages of the thing.”

Maybe too boring for Gewirtz, as he must have skimmed over this section that appears on page three under “Performance Objectives:”

(K) Provide a web-based tool for government employees to administer and manage this record keeping. (i.e. add new publicly accessible websites to the crawl or adjust the crawl frequency.) Provide a minimum of 10 simultaneous login accounts.

In other words, the administration wants the ability to have at least 10 government workers simultaneously adding new web sites to a crawl program, or adjusting the crawl frequency on web sites being crawled. This would allow a massive data mining operation. Our characterizations of this operation are not exaggerated.

This capability is overkill for what Gewirtz is claiming the administration is trying to do with this contract:

The White House isn’t trying to get at your secrets. Instead, the White House is proactively attempting to comply with the Presidential Records Act (PRA) by interpreting postings to social networking sites — if posted by members of the Executive Office of the President — as possible Presidential records.

This is a good thing.

Instead of NLPC, Gewirtz attributes the story to:

…a completely unruly and often full-goose-bozo body of bloggers, just looking for any excuse to increase their ‘hits’ and drive up the pennies they’re given for their thoughts from Google’s ad revenue service.

Although our website is based on blog software, Gewirtz is advised that NLPC is not a blog. We are a public policy group in existence since 1991. We have a track record of credibility and success. We even occasionally appear on CNN.

Before we posted out story, it was reviewed by both experts on the internet and federal contracting. We stand by it.

Too bad Gewirtz did not take the same care with his posting. According to the CNN website, he has an array of credentials. Here’s his bio:

David Gewirtz is Chairman and CEO of ZATZ Publishing, Editor-in-Chief of the ZATZ magazines and, according to the Independent Computer Consultants Association, is “one of America’s foremost email experts”. He has been described by CNN as “a leading Presidential scholar specializing in White House email.”

He is the Cyberterrorism Advisor for the International Association for Counterterrorism & Security Professionals and a columnist for The Journal of Counterterrorism and Homeland Security. He is a member of the FBI’s InfraGard program, the security partnership between the FBI and industry. David is also a member of the U.S. Naval Institute and the National Defense Industrial Association, the leading defense industry association promoting national security.

Credentials don’t mean a thing if you don’t do your homework. Fair play would dictate that Gewirtz contact us before attacking us. He made no such attempt.


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Agency: Executive Office of the President
Office: Office of Procurement
Location: Office of Procurement

RFQ Items of Interest:

  • Firm Fixed Price (FFP) to be proposed by Offeror? HW/SW/Services?
  • Disaster Recovery? How Often? Disaster Recovery Plan?
  • Storage Size Requirements/# of Records/Data Mining Capability/Interface?
  • Intellectual Property / Require Consent Issues with 3rd Party Social Networking?
  • Contractor Indemnification/Limitation of Liability?
  • 24 Hour Support?
  • Non-Disclosure Agreement Before Contract Award?
  • Privacy Act?

2. Scope
The contractor shall provide the necessary services to capture, store, extract to approved formats, and transfer content published by EOP on publicly-accessible web sites, along with information posted by non-EOP persons on publicly-accessible web sites where the EOP offices under PRA maintains a presence, throughout the term of the contract.

The contractor shall if possible, capture, store, extract to approved formats, and transfer content published by EOP on non-public websites.

The contractor shall include in the information posted by non-EOP persons on publicly-accessible web sites where the EOP maintains a presence both comments posted on pages created by EOP and messages sent to EOP accounts on those web sites. Publicly-accessible sites may include, but are not limited to social networking sites.

The contractor shall provide a user-friendly way of organizing and searching captured information.

The contractor shall properly transfer the captured information, as identified by EOP, to NARA in an acceptable format for both preservation in NARA’s Electronic Records Archive and presentation at the future Presidential Library.

The Contractor shall provide a method to separate content posted by other EOP component offices as required.

3. Period of Performance and Place of Performance
The period of performance is for twelve months from date of award and seven one year options for a total of eight years. The work may be performed and stored at the Contractor’s facility as appropriate.

4. Background
In order to comply with the Presidential Records Act, the White House New Media team is looking for a non personal service contractor to crawl and archive PRA content on all third party sites where the EOP has a presence (i.e. Facebook.com/whitehouse, Twitter.com/whitehouse).

Currently, the Government team is capturing the data and content both programmatically (via Application Programming Interfaces (APIs) from social networks) and manually (through daily screen shots). EOP requires a provider to ensure we automatically capture this content in a scalable, efficient and reliable manner.

5. Performance Objectives
(A) The scope is to capture, store, extract to approved formats, and transfer to NARA all content posted by EOP components subject to the PRA on publicly-accessible websites during each calendar year.
(B) Capture and store content of any kind, including text, graphic, audio, and video, in any existing file format.
(C) Demonstrate an ability to adapt to and archive new file formats that are created after the initiation of this contract.
(D) Capture and store content regardless of whether it is uploaded from the EOP network to the site or created directly on the site.
(E) Capture all created content at regular intervals daily, ensuring the retention of any deltas introduced between captures per day(it is preferable, but not necessary, for vendor to capture content that was added to a site and subsequently removed in the interval between captures). Vendor must capture content at least twice a day, and preferably would have a process to initiate a re-crawling of the content on demand.
(F) Capture (and later display) content in context, as it appeared on a given web page.
(G) Capture of comments and publicly-visible tags posted by users on publicly-accessible websites on which an EOP component subject to the PRA maintains a presence. Vendor must be able to either:
(i) Capture all comments posted to a list of websites provided to vendor; or
(ii) Capture a sample of comments posted to a list of websites provided to vendor, according to a sampling methodology that will be provided to vendor and approved by EOP.
(H) Provide the ability to search and/or organize collections by website, keyword, date and/or filter by file type.
(I) Store and transfer data in a manner that preserves both the record content, associated with comments, and related objects, as they were created and with the relationships they exhibited on the web page at the time of capture creation.
(J) Ability for government employees to tag captures from publicly-accessible websites by arbitrary fields or tags such as office or issue (i.e. OVP or health care).
(K) Provide a web-based tool for government employees to administer and manage this record-keeping. (i.e. add new publicly-accessible websites to the crawl or adjust the crawl frequency). Provide a minimum of 10 simultaneous login accounts.

RFQ Q/A

2. Approximately how many sites are controlled by EOP? Answer: The 7 networks where the EOP currently maintains a presence are:

http://www.facebook.com/whitehouse
http://www.twitter.com/whitehouse
http://www.myspace.com/whitehouse
http://www.flickr.com/whitehouse
http://www.youtube.com/whitehouse
http://www.vimeo.com/whitehouse
http://www.slideshare.com/whitehouse

4. Is there an incumbent currently performing this work (even manually)? Answer: There is no incumbent the Government staff does this manually.

7. Does the EOP prefer a hosted solution, or is this system intended to run on their own internal equipment and network? Answer: The Government requires a hosted solution.

9. The Presidential Records Act does not require the storage or archiving of non-EOP content, as such is there a specific reason as to why the content provided on EOP related websites in the form of comments is included in these archiving procedures?

Answer: The PRA includes in its definition of presidential records content ―received‖ by PRA components and personnel. Out of an abundance of caution, we are treating comments made by non-PRA personnel on sites on which a PRA component has a presence as presidential records, requiring them to be captured or sampled.

FAR Clauses:

52.239-1 Privacy or Security Safeguards

Attachment 1 EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF ADMINISTRATION – NON-DISCLOSURE AGREEMENT FOR REQUEST FOR QUOTE # WHO-S-09-0003

I understand that, during the preparation of the Request for Quote, I may be given access to information on a privileged and confidential basis about specific Executive Office of the President (EOP), Information Technology applications, systems, structures or other information that is that is highly sensitive or non-public.

I hereby agree that I will protect from release or unauthorized disclosure, inadvertent or intentional any and all information furnished to me by the Government as part of this market research effort. I further acknowledge that I am specifically prohibited from publishing, reproducing or otherwise divulging any such information to any unauthorized person or entity in whole or in part.

I further acknowledge that, while this information is in my possession, I shall take all reasonable measures to protect it from unauthorized disclosure and to restrict access to those who have a bona fide requirement for such access.

I understand that intentional conversion, conveyance or disposal of any official records containing such information may subject me to criminal penalties under Title 18, Section 641 of the United States Code.


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Strike three for White House on Internet information

By: David Freddoso Commentary Staff Writer 09/02/09

President Obama’s White House does not exactly have a stellar record when it comes to personal information and the Internet. In less than one month, the president’s new media team has come under fire for asking citizens to report “fishy e-mails” about Obama’s health care reform plan and for e-mail messages from David Axelrod that somehow went to people who did not sign up for them.

So when the Executive Office of the President seeks a contractor to archive the usernames and possibly other data from social network users, it is certainly worth asking them why. We did. We have not heard back from the White House yet.

The National Legal and Policy Center’s Ken Boehm has written today on EOP’s 51-page contract solicitation for a web archiving service. Among other things, the solicitation notes that the White House is already archiving the content of seven social networking sites where it “maintains a presence.” The contractor’s purpose is to comply with the Presidential Records Act by saving White House postings to Facebook, MySpace, Flickr, Twitter, slideshare, Vimeo and YouTube.

But the solicitation also specifically includes archiving all messages sent to the White House accounts, and comments posted by users on those social networking pages. “Out of an abundance of caution,” the document states, “we are treating comments made by non-PRA personnel on sites on which a PRA component has a presence as presidential records, requiring them to be captured or sampled.”

The release of some of the data gathered — to a future presidential library, or for any other purpose — could run afoul of the Privacy Act. And the White House seems to leave itself a lot of room with respect to possible uses of the social networking data it stores. For example, will critical comments on EOP’s wall secretly land Facebook users on a blacklist? Will other users begin receiving unsolicited messages, or even requests to sign up for Facebook applications?

If not for the events of August, it probably wouldn’t even be an issue.


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Presidential Records Act Amendments of 2009

H.R. 35: 111th Congress

This is a bill in the U.S. Congress originating in the House of Representatives (“H.R.”). A bill must be passed by both the House and Senate and then be signed by the President before it becomes law.

Bill numbers restart from 1 every two years. Each two-year cycle is called a session of Congress. This bill was created in the 111th Congress, in 2009-2010.

The titles of bills are written by the bill’s sponsor and are a part of the legislation itself. GovTrack does not editorialize bill summaries.

5/19/2009–Reported to Senate amended. Presidential Records Act Amendments of 2009 – This bill has been passed in the House. The bill now goes on to be voted on in the Senate. Keep in mind that debate may be taking place on a companion bill in the Senate, rather than on this particular bill. [Last Updated: Aug 29, 2009 9:04AM]
Section 2 –
Amends the Presidential Records Act to require the Archivist of the United States, when making available any presidential record not previously made available publicly, to: (1) promptly provide written notice of such determination to the former President during whose term of office the record was created and the incumbent President; and (2) make the notice available to the public.
Requires such a record to be made available upon the expiration of the 60-day period after the Archivist provides notice, except any record with respect to which the Archivist receives notification of a claim of constitutionally based privilege against disclosure from a former or incumbent President.
Authorizes a former or an incumbent President to extend the period for not more than 30 additional days by filing a statement that such an extension is necessary to allow an adequate review of the record.
Provides that if the period, or any extension of that period, would otherwise expire after January 19 and before July 20 of the year in which the incumbent President first takes office, then such period or extension shall expire on July 20 of that year.
Requires that: (1) any claim of constitutionally based privilege against disclosure of a presidential record must be asserted personally by a former or incumbent President; and (2) a former or incumbent President must notify the Archivist and specified congressional committees of a privilege claim on the day it is asserted.
Requires the Archivist to: (1) consult with the incumbent President to determine whether the incumbent President will uphold any claim of constitutionally based privilege against disclosure made by a former President; and (2) notify the former President and the public regarding such determination.
Prohibits the Archivist from making publicly available a presidential record that is subject to a privilege claim asserted by a former President until the expiration of the 90-day period beginning on the date the Archivist is notified of the claim.
Requires the Archivist, upon the expiration of such period, to make the record publicly available unless otherwise directed by a court order in an action initiated by the former President.
Prohibits the Archivist from making publicly available a presidential record that is subject to a privilege claim asserted by the incumbent President unless: (1) the incumbent President withdraws the privilege claim; or (2) the Archivist is otherwise directed by a final court order that is not subject to appeal.
Makes this provision inapplicable with respect to any presidential record required to be made available: (1) pursuant to a subpoena or other judicial process issued by a court for purposes of a civil or criminal investigation; or (2) to either House of Congress because such records contain information needed for the conduct of business that is otherwise not available.
Directs the Archivist to adjust any otherwise applicable time period as necessary to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process.
Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, removal, or destruction of the Archives’ records.
Section 3 –
Nullifies Executive Orders 12667, dated January 1, 1989, and 13233, dated November 1, 2001 (both establishing a process for review of presidential records and assertion of privilege claims).

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Executive Order 13489: Presidential Records
Barack Obama’s Executive Orders
Signed on 21 January 2009.  Federal Register page and date: 74 Fed. Reg. 4669 26 January 2009.Restores the wording of Executive Order 12667, and revokes the Bush administration replacement Executive Order 13233.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) “Archivist” refers to the Archivist of the United States or his designee.

(b) “NARA” refers to the National Archives and Records Administration.

(c) “Presidential Records Act” refers to the Presidential Records Act, 44 U.S.C. 22012207.

(d) “NARA regulations” refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.

(e) “Presidential records” refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.

(f) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.

(g) A “substantial question of executive privilege” exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.

(h) A “final court order” is a court order from which no appeal may be taken.

Sec. 2. Notice of Intent to Disclose Presidential Records.

(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.

Sec. 3. Claim of Executive Privilege by Incumbent President.

(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.

(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified. The Archivist shall be notified promptly of any such determination.

(c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.

(d) If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.

Sec. 4. Claim of Executive Privilege by Former President.

(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

Sec. 5. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked.

THE WHITE HOUSE,

January 21, 2009


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Obama’s new BlackBerry: The NSA’s secure PDA?

When Barack Obama famously refused to relinquish his treasured BlackBerry, he became the first president in American history to use email while in office. He will also be the first to have to worry about personal internet security.

The president’s new BlackBerry is a special modified variation with top-notch encryption features—further details are not being shared with the media. Vice President Joe Biden and other key officials have also been given this most limited of limited edition devices.


Related Previous Posts:

CzarinaGate: Did Larry Steal Melissa’s Cookies?

Why Does President Obama Want My Cookies?

New Cyber Attacks Against American Government and Business Networks

NIST: Developing ADP Standards/Guidelines For Federal Computer Systems

White House Cyberspace Policy Review Requires Full Implementation of HSPD-12

Related Links

The Executive Office of the President: An Historical Overview (PDF)

Hot Air: Does Obama plan to spy on social-networking sites?

Salon: You don’t have mail


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