Tag: Warrantless Wiretapping

There has been a lot of talk, now that the elections are over and the legislature has fallen into the hands of Republicans about what this will mean for President Obama’s agenda and the Democratic agenda generally. This election season my inbox was full of Democratic politicians begging for money to foreclose the possibility of voters choosing the wrong party at the polls, yours probably was, too.

A persistent theme in these begging emails that I was getting was that the (evil) obstructionist Republicans have gummed up our system of government and the Democrats (the good guys) can’t get anything done in order to enact Mr. Obama’s agenda.

Looking at the accomplishments of Mr. Obama and the governing elites, this narrative, of course, is utter rubbish. The government is working. Mr. Obama and the Republicans have been cooperating all along. Great bipartisan advances and accomplishments are indeed being made.

So, what can we expect of this new aggregation of powers? Probably more of what it created before. Hence, let us review the accomplishments that these allegedly competing forces have created together…

Mr. Obama’s bipartisan accomplishments

Two-tiered justice system, rewards for criminal bankers

Mr. Obama’s bipartisan efforts have kept the criminal banksters who crashed and looted our economy free, under-regulated, still dominating the political system, even larger than they were when they were “too big to fail” and paying the largest bonuses since their criminal activities crashed the economy. Mr. Obama’s efforts to prosecute financial frauds were even wimpier and less effective that George W. Bush’s.  Mr. Obama’s much ballyhooed relief program for homeowners injured by the criminal bankster’s behavior failed miserably; some Democrats claim that Obama sabotaged the program behind the scenes. The result of Mr. Obama’s efforts has been to fuel a new era of Wall Street wealth while screwing average citizens:

They didn’t just blow up finance, they oversaw the swiftest transfer of wealth to the very top the world has ever seen. They screwed workers out of their jobs, they screwed homeowners out of their houses, they screwed retirees out of their pensions, and they screwed municipalities out of their revenues and assets.

Financiers are forcing schools, parks, pools, fire departments, senior citizen centers, and libraries to shut down. They are forcing national governments to auction off their cultural heritage to the highest bidder. Everything must go in firesales at prices rigged by twenty-something traders at the biggest and most corrupt institutions the world has ever known.

And since they’ve bought the politicians, the policy-makers, and the courts, no one will stop it.

Austerity, benefitting the 1% at the expense of the rest of us

Mr. Obama’s bipartisan efforts (his budgets, the sequester) have imposed the austerity that enriches the 1% at the expense of the rest of us.  On Mr. Obama’s watch, taxes on the rich have decreased, shifting their burden onto everybody else. Mr. Obama was so intent on cutting social security benefits for older folks that the Progressive Change Committee characterized his dropping a particularly nasty proposal to cut benefits by miscalculating the effect of inflation on beneficiaries from his 2015 budget, a “huge progressive victory.” It’s a sad day when progressives consider it a “huge victory” when the depredations of an allegedly, progressive, liberal president and his partners in congress are diminished. You’d think that progressives would get excited about, um, progress rather than lack of regress. The economy delivered to us by Mr. Obama and his Republican colleagues took a lot of wrangling, but as one analyst put it:

Obama is the first President in post-war history (and maybe all of history) whose economy gave more money to the top 10% than the entire value of all productivity gains in his Presidency.  Even George W. Bush didn’t manage that.

Now that’s an accomplishment!

Not to be forgotten as well are Mr. Obama’s actions to crack down on those outraged by the bankster criminals and the impunity Mr. Obama created for those that crashed our economy.

While Congress is stalled on the great fiscal myth negotiations, on thing that both houses are have agreed is unconstitutional, warrantless surveillance. This morning, the Senate extended Foreign Intelligence Surveillance Act (FISA) for another five years, rejecting amendments that would have reined in some of the worst abuses. The White House had pushed for a quick, “clean” reauthorization without any amendments before the bill’s Dec. 31 expiration date. The amended FISA was passed in 2008 to retroactively cover Bush-era domestic surveillance and give immunity to the telecommunication companies that participated.

Kevin Gosztola at FDL‘s Dissenter summarizes the amendments that were defeated:

the Senate voted on amendments put forward during the day’s debate: (Sen. Ron) Wyden’s oversight and transparency amendment, which would request a rough estimate or any information the NSA has on the collection of Americans’ communications; the (Sen Jeff) Merkley FISA Court Amendment, which would require FISA court rulings to be declassified in some way and released to the public; the (Patrick) Leahy Sunset Amendment, which would shorten the length of the law’s reauthorization to three years; and an amendment put forward by Sen. Rand Paul to “all US communications, whether sought by US intelligence agencies like the NSA or any government agency, are protected against unwarranted searches and seizures-even if they are held by third party email providers like Google.”

The Leahy Amendment failed to pass 38-52. The Senate voted on Merkley’s amendment immediately after. It failed to pass 37-54. Rand Paul’s amendment (which Feinstein said would’ve repealed the FISA Amendments Act) failed to pass.

The amendment by Sen Ron Wyden (D-OR) was defeated this morning.

Glenn Greenwald at The Guardian describes the Senate floor show by the Democratic Chair of the Senate Intelligence Committee Dianne Feinstein (D-CA) did her best blustering imitation of Vice President Dick Cheney’s fear mongering:

Feinstein insisted that one could support their amendments only if “you believe that no one is going to attack us”. She warned that their amendments would cause “another 9/11”. She rambled about Najibullah Zazi and his attempt to detonate a bomb on the New York City subway: as though a warrant requirement, let alone disclosure requirements for the eavesdropping program, would have prevented his detection. Having learned so well from Rudy Giuliani (and Harry Reid), she basically just screamed “Terrorist!” and “9/11” over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments advocated by Wyden, Merkley, Udall and Paul.

Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, “destroy the program”. But if “the program” is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU’s Richardson noted: “That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that’s being hidden.” In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones’ Adam Serwer similarly asked: “Why, if it’s all on the up and up?”

All of this was accomplished with the core Bush/Cheney tactic used over and over: they purposely waited until days before the law is set to expire to vote on its renewal, then told anyone who wants reforms that there is no time to consider them, and that anyone who attempted debate would cause the law to expire and risk a Terrorist attack. Over and over yesterday, Feinstein stressed that only “four days remained” before the law expires and that any attempts even to debate the law, let alone amend it, would leave the nation vulnerable.

President Obama was opposed to FISA before he voted for it as a senator. This is not the “change” we should be supporting.

Ben Franklin would be disgusted with President Obama and this congress.  

Here are some of the good guys in Congress who are trying to protect our freedoms under the Fourth Amendment:

Merkley Introduces Bill to Prevent Warrantless Surveillance of Americans

Under amendments to FISA passed during the Bush administration, the intelligence agencies may conduct warrantless wiretapping, potentially collecting vast amounts of communications and data, so long as they reasonably believe the communications involve individuals who are located outside of the United States and who are not U.S. citizens. However, there are loopholes in the current statute that could permit the intelligence community to intentionally or unintentionally collect and store the communications of American citizens and others living in the U.S. and to mine data collected from Americans without a warrant.  National security agencies have not even released estimates of how often Americans’ communications are swept up by the warrantless wiretapping program.  [..]

“Keeping Americans safe versus protecting American’s privacy is a false choice. We have a moral and Constitutional duty to do both,” Merkley said. “We can ensure our government has the tools to spy on our enemies without giving it a license to intrude into the private lives of American citizens.  This bill will establish new safeguards to respect the principles of the Fourth Amendment protections from government intrusion without a warrant while ensuring that the intelligence community has the tools it needs to combat terrorism.” [..]

“This bill will give the FISA Amendments Act the overhaul it so desperately needs, restraining the government from unconstitutionally collecting and using vast amounts of data about innocent Americans,” said Michelle Richardson, ACLU Legislative Counsel. “These amendments would allow collection against foreigners to continue while better protecting Americans and should be considered a win-win for both the intelligence community and the Constitution.”  

Wyden Places Hold on FISA Amendments Act Extension

Warns that Loophole Gives Government the Ability to Circumvent Warrant Requirements to Spy on U.S. Citizens

Wyden identified two specific concerns that he believes Congress must address before agreeing to a long-term extension of FAA’s authorities.

The first pertains to the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under the FISA Amendments Act authorities.  Last Summer, he and Senator Mark Udall asked the Administration for an estimate of the “number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act.”  The Office of the Director of National Intelligence responded that it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.”  Nearly a year later, Congress has yet to receive an estimate of the number of Americans who have had their communications collected under FAA.  

“The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States,”  Wyden explains in his hold statement.  “Before Congress votes to renew these authorities it is important to understand how they are working in practice.  In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.”

Wyden’s second concern pertains to what he describes as the law’s inadequate protections against warrantless “back door” searches of Americans.

“I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act,” Wyden writes. “Then it is possible that this number could be quite large.  Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.“

David Kravets alerts us to a proposal (pdf) by Rep. Jerrold Nadler (D-NY) and  Rep. John Conyers Jr. (D-MI) that require the government to obtain a probable-cause warrant to access data stored in the cloud:

The law that the measure would amend is the Electronic Communications Privacy Act, which has seen few updates following President Ronald Reagan’s 1986 signature on the measure.

The proposal represents yet another attempt to rewrite legislation that generally grants the government wide powers to access Americans’ cloud-stored data without a probable-case showing. [..]

Adopted when CompuServe was king, ECPA allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed, as long as the content had been stored on a third-party server for 180 days or more. E-mail and other cloud-stored data younger than six months is protected by the warrant requirement, as is all data stored on a personal computer drive.

ECPA was adopted at a time when e-mail, for example, wasn’t stored on servers for a long time. Instead it was held there briefly on its way to the recipient’s inbox. E-mail more than six months old on a server was assumed abandoned, and that’s why the law allowed the government to get it without a warrant. At the time there wasn’t much of any e-mail for the government to target because a consumer’s hard drive – not the cloud – was their inbox.

But technology has evolved, and e-mail often remains stored on cloud servers indefinitely, in gigabytes upon gigabytes – meaning the authorities may access it without warrants if it’s older than six months.

The same rule also applies to content stored in the cloud. That includes files saved in Dropbox, communications in Facebook, and Google’s cloud-storage accounts. Such personal storage capabilities were nearly inconceivable when President Reagan signed the bill.

The proposal will probably never be even heard in the radical right wing House committee. Kravets notes that a similar proposal in the Senate by Sen. Patrick Leahy (D-VT) never even got a hearing in the Judiciary Committees that Leahy chairs.

While the Obama administration continues to carry out and expand the Bush/Cheney regime agenda and the obstructionist Republicans and Right wing Democrats unwittingly (or not) help him, there are some people who recognize that security and freedom are not mutually exclusive.