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  • How a bill becomes a law 2.0: A high-tech president renews the Patriot Act by autopen

    Because he was traveling in Europe when it came time for him to approve the extension of several key parts of the USA Patriot Act, Pres. Obama signed the bill, not in person, but long distance, with the stroke of an autopen.

    Anyone familiar with how a bill becomes a law will remember that, according to Article I, Section 7, of the Constitution,

    Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it.

    Normally the president signs with a pen:

    Schoolhouse Rock still of president signing bill with a fountain pen

    The Schoolhouse Rock version of how a bill becomes a law shows the president signing with a fountain pen. 

    But on May 27, when he had to sign the bill, the president was attending the G8 summit in France, the same meeting where French Pres. Nicolas Sarkozy called for greater government control of the internet. So instead of overnighting the bill to Deauville for a traditional, in-person signature by fountain pen, Mr. Obama, a veteran internet surfer devoted to his Blackberry and his iPad, used that internet to Skype his authorization to have the autopen, a mechanical writing machine that was programmed with his autograph, sign the bill into law from half a world away.

    It was the first time an autopen was used to turn a bill into a law, but Barack Obama was hardly the first president to use an automated writing machine. The autopen, initially called the polygraph, was invented well over a century ago, in 1803, and it attracted the attention of our first high-tech president, Thomas Jefferson. Jefferson used the device, which consisted of two pens yoked by a series of levers so that the second pen tracked the motions of the first, to copy his correspondence. Unfortunately, like all new technologies, the polygraph had some bugs: its levers needed constant adjustment; the quill pen points needed constant sharpening (steel pens weren’t readily available till the 1820s); and of course both pens needed constant dipping in the inkwells. The device was not exactly user friendly, and it proved a commercial flop, the 19th-century equivalent of 8-track.

    image of Jefferson's polygraph

    The first autopen, called the polygraph, was used by the first high-tech president, Thomas Jefferson; the one pictured above is at Monticello.

    The modern autopen is more complex and more efficient, and it’s regularly used by politicians, celebrities, and executives to sign their names to batches of letters, souvenir photos, and even greeting cards.

    Greeting card with autopenned signatures of Bill and Hillary Clinton

    The Clintons—or a White House intern—used an autopen to sign this holiday card, with its machine-embossed presidential seal, which was then sent to my mother, and thousands of other minor campaign donors.

    Some legislators worried that, although they themselves used autopens for their own official correspondence, an autopenned signature might not be legal for a bill, and that the Patriot Act might not have been renewed after all. That's because the Constitution explicitly says, “if he approve he shall sign it,” employing the subjunctive approve and the imperative shall to indicate that a human presidential autograph is required, not a machine-generated imitation. Similarly, when Chief Justice Roberts flubbed the oath of office during Pres. Obama’s inauguration, objections were raised that no one can be president without reciting the oath exactly as it appears in Article II, section 1, of the Constitution, and so Roberts repeated the swearing in a couple of days later in a private ceremony at the White House. (That was followed by the never-ending flap over what constitutes a legal birth certificate.)

    But Pres. Obama didn’t re-sign the Patriot Act in person when he got back to the U.S. That’s because, according to an opinion written by George W. Bush’s Justice Department in 2005, what makes a bill a law is not the president’s physical autograph, but his intention to sign the bill. (The same Justice Department drafted the opinion that waterboarding wasn’t torture because it was not intended to be torture.)

    In any case, it’s not likely that a defendant accused under the Patriot Act would gain much traction by arguing that the law wasn’t properly signed. Writing technologies have advanced from the days when the Constitution was drafted with a dip pen. No one seems to have objected when presidents began signing bills with fountain pens instead of quills—and there’s no legal reason why bills can’t be signed with a ballpoint, a rollerball, even a pencil (contrary to the popular mythology, pencil signatures are legal). We readily accept checks signed by machine, and encrypted digital codes are quickly replacing conventional autographed approvals in online banking and commerce. It won’t be long before the autopen will seem just another quaint form of low-tech endorsement, a quill pen powered by electricity.

    In the end, extending the Patriot Act with an autopenned signature instead of a handwritten one sends a message about governing in the digital age. The law, first passed in October, 2001, allows the government to use high-tech surveillance techniques to read our emails, monitor our phone calls, track our keystrokes, even discover what we’ve borrowed from the public library, all without a warrant. So it's no surprise that the president signed a Big-Brother-is-watching-you law using a Big-Brother-is-texting-you device. That’s one more reminder that our brave new digital world works two ways. The internet may give us unfettered access to what lies beyond our screens, but at the same time it lets governments watch us and regulate what we do. Apparently, so far as Barack Obama and Nicolas Sarkozy are concerned, anything less would not be a patriotic act.

     Sarkozy addressing the G8 Summit 

    Big Brother, aka French president Nicolas Sarkozy, tells the G8 summit meeting in Deauville that government regulation of the internet is essential.


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