Wednesday, September 16, 2009

White House Seeks Renewal of Surveillance Laws but Open to Possible Privacy Improvements

It was only a week ago that the Electronic Privacy Information Center (EPIC) released their Privacy Report Card for President Obama, giving him a less than stellar C+ on civil liberties.

Commenting on that grade on Tuesday I wrote, "Not only did the President flip flop on the wiretapping issue before being elected, he has refused to hold anyone accountable for the crimes committed by the Bush Administration or the telecommunication companies that abetted those crimes."

Based on breaking news today, perhaps the report card will need to be updated soon, as the Obama administration and the Justice Department are signaling their apparent embrace of (and request to renew) a variety of Patriot Act provisions.

Specifically, Congress has been asked to reauthorize the use of roving wiretaps, permitting authorities to track multiple communications devices owned by an individual since people can switch devices frequently and quickly. The administration also asked that one particularly controversial intelligence gathering method be reauthorized - accessing personal records.

That last request remains an area of contention because the question becomes whether library and bookstore records could be accessed too? This would clearly be unacceptable to privacy advocates...

So at first glance, this sounds like bad news, but, before I start sounding the alarm bells I would note that the President (and the DOJ) did hint that he's open to additional privacy safeguards being added to the Act, and we do have Senator's Durbin and Feingold (a privacy champion) leading the charge for them.

So before I start wallowing over yet another Obama extension of a Bush era policy let's see how this all pans out.

Of particular note in the articles I've read today is the issue of wiretapping. But before I get to the Washington Post write up let me remind everyone how we got here:

Until exposed by the New York Times, the Bush Administration had an ongoing, four year program that illegally spied on Americans' communications without warrants. Since that time there have been numerous additional revelations regarding this program...with one after the next only adding to the degree to which it subverted our Constitution and most certainly broke the law.

Amazingly, these revelations have CONTINUED to leak out, yet we have had no formal investigations or prosecutions to show for it - only a continuation and expansion of the Executive Branch's power to commit similar acts.

In addition, by giving the telecoms immunity - another one of Obama's flip flops - the dual purpose of protecting the politicians from having these companies share what they know about the program was achieved.

As a United States Senator, Obama was clear and correct in his assertion that the warrantless wiretapping program was illegal. And, the new Attorney General Eric Holder expressed the same view, both as a private citizen and at his confirmation hearing. As we now all know, both Obama and Holder have completely reversed themselves, by not only refusing to prosecute or investigate the program and/or those that carried it out, but have even expanded their defense of the program in some important key respects.

So it seems clear we can all resign ourselves to the fact that there will be no investigations or justice rendered when it comes to the government's wiretapping program. The question now becomes whether anything at all will be done to better protect the privacy of the public against the ever expanding power of the Executive Branch? We may have our answer soon...

This from the Washington Post:

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Obama's approach to electronic surveillance has been closely watched since he shifted positions during the presidential campaign last year, casting a vote to update the Foreign Intelligence Surveillance Act over the objections of liberals in his party. That law granted telecommunication companies immunity from lawsuits by Americans who argued that their privacy had been violated in an electronic data collection program.


Several civil liberties groups are exhorting Congress to use the expiration to begin debate on an array of domestic surveillance issues. One priority is national security letters, which require disclosure of sensitive information by banks, credit card companies, and telephone and Internet service providers. No judge signs off on these, and recipients are usually barred from talking about the letters.

Durbin and Feingold want to tighten standards for obtaining national security letters so that the government must show some "nexus to terrorism," according to a Senate Democratic aide, heightening the current standard of showing "relevance" to a counterterrorism investigation. The senators also want a judge be able to review the appropriateness of the gag order on the letters' recipients. Such provisions were contained in bipartisan legislation introduced previously by Feingold and Durbin and supported by then-Sen. Barack Obama.

Their new bill, expected to be out this week, will also seek to repeal the legal immunity granted to telecommunications companies included in last year's domestic surveillance legislation. The bill would also ensure that new powers granted under last year's law would not be used as a pretext to target the communications of Americans in the United States without a warrant, another Senate Democratic aide said.


The ACLU is also urging a tightening of last year's FISA Amendments Act to ensure that the government is collecting the e-mails and phone calls only of suspected terrorists. It also wants revisions of guidelines that empower FBI agents to use intrusive techniques to gather intelligence within the United States without any evidence that a target has ties to a terrorist organization.

Click here to read the rest of the article.

For the time being I prefer to remain cautiously optimistic - particularly due to my respect for Senator Russ Feingold - that some significant privacy safeguards will find their way into any final agreement. Its also a positive sign that the Justice Department and the Administration have signaled their willingness to work with Congress on addressing and improving these expiring provisions.

As always, the devil will be in the details.

And as noted by the ACLU, other government surveillance activities that did not expire this year also needed fixing, stating, "We must take this opportunity to get it right, once and for all." Amen to that...

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