The Volokh Conspiracy - Federal Contract to Archive Social Networking Sites.--

There is a debate in the blogosphere about the scope of a contract that has been sent out for bidding. Ed Morrissey sets the stage:

Today's rumor of presidential overreach starts at the National Legal and Policy Center and the Drudge Report, which has launched a slew of e-mails about official spying on social-networking sites. The NLPC found an RFP from FedBizOpps, the site that publishes all opportunities to do business with the federal government, that offers a contract for a company to collate data from the Internet. Is Big Brother upon us?

Morrissey says that the National Legal and Policy Center has misread the proposal. I read the proposal last night and I think it's ambiguous. Morrissey correctly points to this language that suggests a narrow (and probably proper) scope for the project:

The contractor shall provide the necessary services to capture, store, extract to approved formats, and transfer content published by EOP [Executive Office of the President] 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.

But Morrissey doesn't mention this language, which points to a broader enterprise:

5. Performance Objectives . . .

(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.

The proposal is not artfully written. While the language says that a vendor must be able to EITHER collect all comments on the website OR capture a sample of comments, in context I think they mean that a vendor must be able to do both tasks (at least where a full collection would not be so large as to be impractical).

A literal reading of the rest of these two passages of the proposal would seem to say that the vendor "must be able to . . . capture all comments posted on a website" and that the collected information must "include . . . both comments posted on pages created by EOP and messages sent to EOP accounts on those web sites." Saying that the collection of ALL comments on the website must include comments to and from the EOP does not limit the information collected to that required under federal law.

Where does this leave us?

I think Morrissey is right about the purpose of the contract bid — to collect comments to and from the White House on social networking websites (particularly pages set up and run by the White House). It would not be fair to say that the White House has a plan to harvest private information in a general way from social networking sites. Yet the National Legal and Policy Center is also partly right because the proposal seems to require the vendor to be able to "Capture all comments posted to a list of websites," not just the ones appropriate to gather.

Of course, requiring a vendor to have the capability to collect all comments on Facebook and Twitter — or a random sample of them — does not mean that the White House will use that power. But it is explicitly seeking to obtain that technological capability.

	[Jim Lindgren, September 2, 2009 at 1:41pm] Trackbacks Federal Contract to Archive Social Networking Sites.-- There is a debate in the blogosphere about the scope of a contract that has been sent out for bidding. Ed Morrissey sets the stage: Today's rumor of presidential overreach starts at the National Legal and Policy Center and the Drudge Report, which has launched a slew of e-mails about official spying on social-networking sites. The NLPC found an RFP from FedBizOpps, the site that publishes all opportunities to do business with the federal government, that offers a contract for a company to collate data from the Internet. Is Big Brother upon us? Morrissey says that the National Legal and Policy Center has misread the proposal. I read the proposal last night and I think it's ambiguous. Morrissey correctly points to this language that suggests a narrow (and probably proper) scope for the project: The contractor shall provide the necessary services to capture, store, extract to approved formats, and transfer content published by EOP [Executive Office of the President] 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. But Morrissey doesn't mention this language, which points to a broader enterprise: 5. Performance Objectives . . . (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. The proposal is not artfully written. While the language says that a vendor must be able to EITHER collect all comments on the website OR capture a sample of comments, in context I think they mean that a vendor must be able to do both tasks (at least where a full collection would not be so large as to be impractical). A literal reading of the rest of these two passages of the proposal would seem to say that the vendor "must be able to . . . capture all comments posted on a website" and that the collected information must "include . . . both comments posted on pages created by EOP and messages sent to EOP accounts on those web sites." Saying that the collection of ALL comments on the website must include comments to and from the EOP does not limit the information collected to that required under federal law. Where does this leave us? I think Morrissey is right about the purpose of the contract bid — to collect comments to and from the White House on social networking websites (particularly pages set up and run by the White House). It would not be fair to say that the White House has a plan to harvest private information in a general way from social networking sites. Yet the National Legal and Policy Center is also partly right because the proposal seems to require the vendor to be able to "Capture all comments posted to a list of websites," not just the ones appropriate to gather. Of course, requiring a vendor to have the capability to collect all comments on Facebook and Twitter — or a random sample of them — does not mean that the White House will use that power. But it is explicitly seeking to obtain that technological capability.