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Obama-Biden Transition Team & Privacy

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Background

On November 4, 2008, Senator Barack Obama was elected to be the 44th President of the United States. His running mate, Senator Joe Biden, will serve as Vice-President. President-elect Obama will assume office on January 20, 2009. Immediately after the election, Rep. Rahm Emanuel, a Congressman from Chicago, was named as Obama's chief of staff. Thereafter, the President-elect Obama's Presidential Transition Team was created in preparation for the next government. The Presidential Transition Act of 1963 was drafted to promote the smooth transfer of power from one President to the next while assuring minimum disruption in the domestic and international affairs of the Federal Government. In 2000, the act was further expanded to provide for the training of individuals who the President intended to appoint to certain key positions. A key task of all transition teams is vetting prospective executive branch officials, including cabinet members. Individuals are nominated by the President shortly after he takes office, and high-level officials are confirmed by the Senate. Some nominees face intense scrutiny, and vetting nominees prior to nomination has become a critical task for transition teams.

Change.gov, the web site for the Office of President-elect Obama, was launched to serve as a vehicle of interaction between the public and the new administration. The portal also allows for prospective appointees to submit job applications to President-elect Obama's transition team. The site states that "some positions will require Senate confirmation while others will not. Some appointments will be made during the transition process and others during the early part of the new Administration." Once a person, vying for a high-ranking position or for the Cabinet, fills out the online form, she receives a 63-item, seven page questionnaire which contains detailed and comprehensive questions designed to ferret out professional achievements as well as personal and potentially embarrassing details.

Historically, each successive incoming administration has vetted applicants more tightly than the last. Questionnaires have been used by recent transition teams, and they have become increasingly lengthy and personal. The Obama-Biden transition team's seven page questionnaire includes queries regarding applicant's family members, and potentially embarrassing information. Although a potential nominee's answers do not, by themselves, disqualify a person, the information obtained is used to judge whether an applicant is appropriate for the job. The Obama-Biden transition team has not made a clear statement that personal information will be destroyed after a hiring decision is made. Retention of personal information obtained during the vetting process would result in a treasure trove of personal details of all the applicants and without any clear legal safeguards against subsequent disclosure.

The questionnaire form includes requires applicants to list all "aliases or handles" used to communicate on the Internet, and to reveal any electronic communications that "could be a possible source of embarrassment to you, your family, or the President-elect if it were made public." It also requests information regarding: personal financial data, including a "net worth statement," "all brokerage statements for investment accounts," and "the mortgage terms for any properties;" the hiring of domestic workers who may not have been legally eligible to work in the U.S. at the time of employment; the names and addresses of cohabitants in the last ten years; web site profile URLs or any other information that "could suggest a conflict of interest or be a possible source of embarrassment." Applicants are also asked "do you or any of you immediate family own a gun," and "have you had a complete physical within the past year?"

While high-profile jobs in the federal government demand the utmost integrity of character, prospective nominees have a legitimate expectation that their personal information will be kept confidential. Job application information should remain private. Even if an applicant does not succeed in acquiring a federal government job, the answers to the aforementioned queries in the questionnaire should be safeguarded. However, there are no clear legal protections to prevent the sharing of such personal information. The transition team's web site contains a privacy policy which states "it is our general policy not to make Personal Information available to anyone other than our employees, staff, and agents." But there is no clear safeguard against the future sharing of information submitted on the 63-item job application questionnaire. The Washington Post quoted E. Pendleton James, the manager of President Ronald Reagan's transition, "it has become a nightmare. I don't know how anybody with some self-esteem can subject themselves to all of these questionnaires .... Every candidate who fills out the form is deathly afraid of making a mistake. If he or she does make an innocent mistake, that can be used as a political weapon in the confirmation process to question your integrity."

Further, because the information submitted to the transition team is not part of a government record, it is not subject to Privacy Act safeguards, which would provide privacy protections and transparency. The Privacy Act, 5 U.S.C. § 552a, only applies to "records" that are "maintained by a federal agency." Therefore, there is a potential for misuse of information submitted to the Obama-Biden transition team. The President-elect should ensure potential nominees' privacy and security, and make public a privacy policy outlining how the information held by the transition team will be kept private and eventually destroyed.

In his campaign for the presidency, President-elect Obama addressed the issues of privacy, Executive Authority, and data protection beginning with the release of his technology policy position paper in November 2007. The paper states, "Safeguard our Right to Privacy: The open information platforms of the 21st century can also tempt institutions to violate the privacy of citizens. As president, Barack Obama will strengthen privacy protections for the digital age and will harness the power of technology to hold government and business accountable for violations of personal privacy." The transition team should embody President-elect Obama's promise, and establish a clear policy for handling the personal information acquired from job applicants, including data submitted through the questionnaire.

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Last Updated: December 31, 2008
Page URL: http://www.epic.org/privacy/transition08/default.html