Wednesday, October 27, 2010

EPIC Grades Obama on Privacy and Civil Liberties

Now, I've written in excruciating detail on this blog about what a total and complete disappointment President Obama has been on issues related to privacy and civil liberties. I never expected his actions as President to fully match his words as a candidate (and constitutional scholar!) - this is rarely EVER the case, particularly when it comes to issues related to national security - but the two seem to be diametrically opposed on nearly every issue.

Sadly, what has become an ironclad, and increasingly dangerous "rule of thumb" in this country, is that once a power is taken by the government (i.e. Patriot Act), or a civil liberty/constitutional protection erased, its gone...NO President, anymore anyway, once elected offers to "give" up power achieved by the President (s) before him. And boy oh boy has this remained true between the privacy eviscerating Administration of George W. Bush and that of President Barack Obama.

Before I get to some of what I believe are his greatest failings, let's get to the Electronic Privacy Information Center (EPIC) Privacy Report Card for President Obama released last week.

EPIC gave the Administration a grade of C in Consumer Privacy, B in Medical Privacy, D in Civil Liberties, and B in Cybersecurity. This year's grades are a drop from the grades given in EPIC's 2009 Privacy Report Card and reflect important privacy developments during the past year.

For me personally, the list of disappointments is getting, literally, too long for me to address these days. So forgive me for reaching back into my archives and getting some help...from myself.

We all know by now the Administration's whole-hearted embrace of Whole-Body-Imaging in airports. As we also now know, both Obama and Holder have completely reversed themselves on the issue of wiretapping, 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. Telecom immunity? You bet. Justice for those spied on? Hell no.

We also now KNOW, that it was President Obama himself that worked behind the scenes to ensure that absolutely no meaningful reforms to the Patriot Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate. Strange, he doesn't lift a finger for things like the public option or the Consumer Protection Agency, but man, he's one tough customer when it comes to protecting the Patriot Act.

Its as if we're watching a debate between the eloquent, pro-civil liberties "Candidate Obama" and the just as eloquent, anti-constitutional authoritarian, President Obama.

Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components recently extended, calling them "just plain wrong" in a Senate speech. He argued:

"Government has decided to go on a fishing expedition through every personal record or private document -- through library books they've read and phone calls they've made...We don't have to settle for a Patriot Act that sacrifices our liberties or our safety -- we can have one that secures both."

But now let's hear from President Obama, who wrote in a letter that he was advocating IN FAVOR of the most abusive provisions in the Act to stand...the same ones he claimed were "shoddy and dangerous" as a Senator.

For instance, business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist.

Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on weak evidence or unfounded suspicion....

Now President Obama justifies keeping nearly all of Bush's terror war provisions in place with the standard rationale that the government must have all the weapons needed to deal with the threat of terrorism. If you think I'm confusing Bush and Cheney with Obama, sadly, you're wrong.

Then there was the Administration's radical interpretation and use of the "state secrets" privilege to block courts from hearing a host of information, from torture allegations to wiretapping claims. In other words, for the sole purpose of protecting those that committed crimes that the President vehemently criticized as a Senator and promised to address as a candidate.

We now know that the Administration is going along - in most respects - with the Bush policies of indefinite detention and military tribunals.

And as most are probably aware (I've posted on it recently), Obama is backing a bill that would require all Internet companies to be able to tap into any online communications that they enable.

Trust me, that's just a quick list I've put together...there are many more examples I could give. But for today's purposes, let's see some of what EPIC cites (surely much the same), and a few articles, namely from Computerworld, Networkworld, and Daily Tech.

But, in case you think I'm being too hard on the man, watch the Daily Show's fantastic run down of the Obama "constitutional scholar" candidate vs. Obama "constitution eviscerating" President:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
Respect My Authoritah
Daily Show Full EpisodesPolitical HumorRally to Restore Sanity

Computerworld reports:

On the civil liberties front, for instance, there were high expectations that changes would be made to many programs, including the Patriot Act, the Fusion Centers that were created for sharing intelligence information between local and federal agencies, no-fly lists and the Real-ID national identification program. All of those were programs inherited from the Bush administration, and a year ago it was too early to assess what impact the new administration would have on them, he said.

The fact that little has changed a year later is surprising given the early expectations, Rotenberg said. The Obama administration's failure so far to set up an advisory board for monitoring key issues such as the airport full-body scanner program is troubling, he noted. So too is its relative inaction around controversial programs such as the Patriot Act and the Fusion Center initiative, he said.

Rotenberg also criticized what he claimed has been the Federal Trade Commission's less than aggressive approach in dealing with serious consumer privacy issues stemming from the use of technologies such as Facebook and Google's Buzz and Street View.

Read more here.

Daily Tech also honed in on the numerous outright reversals by the President:

More controversial, however, is the domestic spying efforts closely tied to the terrorism. Namely the National Security Agency (NSA), under the Patriot Act of 2001, was given the right warrantless wiretaps of calls between U.S. and foreign citizens. That alone was controversial enough, but an expose in The New York Times showed that domestic calls between two U.S. citizens were also being intercepted, in what the NSA dubbed an "accident".

A special Obama administration task force consisting of U.S. Department of Justice, Department of Commerce, NSA, Federal Bureau of Investigations, local law enforcement, and more is looking to reinforce warrantless wiretap. The move is perhaps unsurprising, considering that the council shares many of the same experts that mastermind President George W. Bush's original Patriot Act.


Under the proposed changes, telecoms would be mandated to not only prepare for such instances, but also for warrantless wiretapping as spelled out under the Patriot Act. Those telecoms who complied fully would be rewarded with undisclosed incentives, while those who resist or were slow to comply would face fines or other penalties.


Previously detailed nuances of the plan call for the government also to gain new warrantless surveillance powers over other communications resources such as email (e.g. Gmail), text messages (including encrypted services, like RIM's), social networks (e.g. Facebook), and internet forums.

Read more here.

Now to perhaps the most comprehensive article on the subject, NetworkWorld reports:

It's grade card time and President Obama earned a big fat D as is doomed civil liberties, as in does have unchecked authority to kill you, and as in dangerous and overreaching state secrets arguments. It's sad how our right to privacy seems to be decreasing while the government's right to keep secrets seems to be growing. EPIC (Electronic Privacy Information Center) released the 2010 Privacy Report Card (PDF) for the Obama Administration, giving Obama a "D" grade in Civil Liberties. Why? For the same reasons that the ACLU argues that the president does not have the unchecked authority to kill you, and EFF warns that the government is singing the same old state secrecy tune about wiretapping.


The ACLU is fighting against targeted killing and death without due process. Due to state secrets privilege, if you even found out that you were targeted by the CIA to be killed, you couldn't even fight it in court because to mention state secrets jeopardizes national security. You see, the government keeps secret "kill lists," but the Obama administration says that it's a state secret who they plan to assassinate. Former Director of National Intelligence agreed that the government has a license to kill Americans that are secretly labeled terrorists. Since the Obama administration has asserted its authority to carry out "targeted killings" of U.S. citizens outside armed conflict zones, the ACLU is arguing that President Obama does not have unchecked authority to kill you.


The state-secrets doctrine seems as out of control as does what is happening to privacy, civil liberties and human rights during the War on Terror. Just look at how many people in peace groups or activists that have wrongfully been put on watchlists or been labeled as a terrorist. Spying on free speech is at Cold War levels! How soon before speaking out for civil liberties, privacy, freedom is also considered low level terrorism? At the rate things are going, could people who are activists, who are considered "low level terrorist" start to be targeted? In 2009, research showed that 10 or more civilians die for every terrorist killed by drone missiles. If the "CIA's Predator drones targeting software was pirated" and faulty, so that it might "possibly miss its target by as much as 40 feet," could the government then say oops, the software steered it wrong and take out even more alleged enemies of the United States? Would that too be considered a "state secret?"


EFF wrote that the state secrets privilege amounts to an immunity for government law-breaking. The "government has made the same dangerous and overreaching state secrets arguments in the domestic warrantless wiretapping cases." The court had dismissed the legality of the NSA's warrantless dragnet surveillance program "because so many Americans have had their communications and communications records illegally obtained by the government, no single person has legal 'standing' to challenge the ongoing program of government surveillance. In other words: if everyone is being spied on, no one can sue." EFF argued (PDF),"that ruling risks creating a perverse incentive for the government to violate the privacy rights of as many citizens as possible in order to avoid judicial review of its actions." The government says "the same thing it has been arguing for the past five years in every other warrantless wiretapping case: that any attempt by the courts to judge the legality of the alleged surveillance would violate the state secrets privilege and harm national security."

And now the government wants to wiretap the web.

Click here to read more.

To repeat one of my past "conclusions" on this blog: Look, fear as an argument, no matter how ludicrous or exaggerated, trumps privacy these days, as least when it comes to coverage in the corporate media, or positions taken by the entire Republican Party and probably a majority of the Democrats - and now clearly this President.

I find it particularly dismaying that the tables have been so turned that the onus (and derision) has been placed on those that simply believe the government, or corporate America for that matter, should not have access to everything we do, particularly when we have committed no crime. Now we must prove that whatever the latest power the government seeks to enshrine as law won't stop an attack (and if we can't prove this negative, we are endangering Americans!) or how it could specifically harm us...rather than the onus being on those seeking to circumvent our privacy and rights in the name of "national security."

If we can all go back in time for a minute, and remember those dark days of the Bush Administration (i.e. all of them), we should also remember the consistent, vehement, and vocal opposition from the left of Bush assaults on privacy and the constitution, from eavesdropping, to indefinite detention, to state secrets, to the Patriot Act abuses, and so, and so forth.

This vehement opposition was of course warranted, and important. But now that Obama is President, and CONTINUING THESE POLICIES, the same outcry that once existed has become a whimper. No, I'm not talking about groups like the ACLU or EFF, but certainly Democrats in Congress, left wing talk radio, and even newspaper editorial boards.

And why is this silence so damaging? Because a so called "liberal" President, a constitutional scholar no less, has now codified what just a few years ago were rightly considered radical attacks on the Constitution and Rule of Law. Now those very same policies have not only been embraced by the new President, but has been accepted by the Democrats in Congress!! In other words, the ball has just moved WAY towards the neoconservative worldview, and their interpretation of an all powerful Executive Branch.

The idea that because Obama is more intelligent, measured, and schooled in constitutional law than Bush (all of which is true), that this somehow means we should entrust him with near unchecked powers, be it wiretapping, assassination of American citizens, or indefinite detention, is patently absurd. Even if it were true that he would use these powers wisely (which is impossible), what's to say the next President will too?

Glenn Greenwald articulated my point (one I've been making here for quite some time) perfectly in a post of his today, stating: Here again, we see one of the principal and longest-lasting effects of the Obama presidency: to put a pretty, eloquent, progressive face on what (until quite recently) was ostensibly considered by a large segment of the citizenry to be tyrannical right-wing extremism (e.g., indefinite detention, military commissions, "state secrets" used to block judicial review, an endless and always-expanding "War on Terror," immunity for war criminals, rampant corporatism -- and now unchecked presidential assassinations of American citizens), and thus to transform what were once bitter, partisan controversies into harmonious, bipartisan consensus...

Let's all try to ensure that this is NOT one of Obama's lasting legacies.

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