Obama's legacy: Domestic spying scandal that could prove greater than Watergate, WikiLeaks

Obama's legacy: Domestic spying scandal that could prove greater than Watergate, WikiLeaks

Summary: U.S. President Barack Obama, just six months into his second term, has his legacy set out for him: the greatest domestic spying program the U.S. — perhaps the world — has ever seen.

(Image: White House)

Those tinfoil-wearing, anti-government, paranoid types turned out to be right after all.

The U.S. government says it has direct access to your Facebook accounts, email accounts, and calling services like Skype, and is mining the data even as you read this.

Specifically, as ZDNet's Rachel King in San Francisco noted, both the U.S. Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) have been secretly collecting data on U.S. residents since 2007, according to a leaked document.

The NSA noted the secret, privacy-infringing practices in a 41-slide PowerPoint presentation, used to train new intelligence operatives no less, which details how the intelligence agency can essentially acquire almost any data on U.S. residents and foreign nationals outside the United States from "complicit" technology companies.

First, it was Verizon, which was given a secret court order from the Foreign Intelligence Surveillance Court (FISC), which was set up in 1978 post-Watergate by Congress, in the form of the Foreign Intelligence Services Act (FISA).

But now, vast swathes of data — in some cases entire databases — from nine major technology companies are being extracted from central servers based at these companies' headquarters, including but not limited to audio, video, photos, emails, documents, and related metadata.

Microsoft, Google, Yahoo, and Apple have all denied the claims in respective releases.

Microsoft and Apple, as noted, were quick to deny the claims. It sounds farfetched, even at a deep level, that these private firms that generate vast amounts of money would sacrifice so much for apparently no return.

But it sheds a bright new light on the way that the U.S. government conducts itself to the very people who hold it accountable. It may, and likely will be, one of the biggest stories of the year — if not of Obama's presidency.

PRISM: The logical progression of ECHELON

Introducing PRISM, or what should be known as ECHELON 2.0, signals an intelligence gathering system between Australia, Canada, New Zealand, the U.K., and the U.S., which allegedly monitors almost anything carried over telephone wires and satellite services.

Except PRISM goes one step further: Telephone wires aren't universal anymore. Datacenters and cloud services almost certainly are.

The U.S. government has given itself carte blanche to access what it wants, when it wants, and for whatever reason. FISA has a bit to do with it, but, in a practical sense, it actually has very little to do with it. FISA wasn't enough on its own. And the law and the U.S. government's often secret interpretations of the law permits it, as long as it falls within the scope of "reasonable suspicion."

But it's all done in secrecy. At least now, it's not so much. The Verizon story blew the lid on the whole thing, and we suspect that other cell networks are under the same or similar orders.

The scope in which this new range of orders goes is unimaginably large, and could affect every single U.S. citizen and resident while in the country and abroad. According to the data, more than 2,000 PRISM reports are generated every month, or more than 24,000 per year — an increase of more than one quarter year over year.

The privacy implications are huge. But the effects that this will have on the confidence in companies that say they pride themselves on privacy will be devastating, at least if proved true. Even now, the damage to their reputations could be irreparable.

Above all else, the Obama administration — which may not have done anything wrong in terms of the law — pushes the spirit of the law to such a degree that this entire scandal could be as significant as Watergate ten times over. It could even be bigger than the WikiLeaks affair, which continues even to this day.

But it was brewing for a long time. September 11 changed the way we deal with terrorism and national security. But copyright and intellectual property theft from China has changed the way warfare is conducted.

While Bush was the "human warfare" president, Obama has become the first "electronic warfare" president.

FISA "not enough" for domestic spying program

It's unclear at this stage who knows what, and how this information was leaked. Many technology companies involved appear to be in the dark — likely only very few people actually know about it, or it's a clever fabrication on the part of the NSA. And there are many shady, quiet elements of U.S. law that involve secret interpretations of existing laws.

What's more troubling is that the companies involved are allegedly complicit in the data collection process by the U.S. government. However, in speaking to The Guardian, those who responded to questions denied knowledge of the program.

Google said in a statement to The Guardian, which verified the first report by The Washington Post: "From time to time, people allege that we have created a government 'back door' into our systems, but Google does not have a back door for the government to access private user data."

Companies operating in the U.S., even a subsidiary, must comply with requests under U.S. law. But the London-based newspaper said the presentation noted: "It took a FISA court [FISC] order to collect on foreigners overseas who were communicating with other foreigners overseas, simply because the government was collecting off a wire in the United States."

"There were too many email accounts to be practical to seek FISAs for all," it added.

The companies that are involved in giving access to their databases to the U.S. government — whether they are being forced to or are voluntarily complicit in — are indemnified under the renewal of the FISA Amendments Act in late 2012.

It goes even further than that. The slide deck also shows that the FBI acts as a "middle man" between federal government agencies and the tech companies. It also notes that it relies on Internet service providers (ISPs) for access, claiming that "access is 100 percent dependent on ISP provisioning."

The scope of the allegations will have — if proven to be accurate and truthful — massive effects on the constitutional rights of almost every U.S. resident. At least, you would think.

Fourth Amendment "notwithstanding"

The Fourth Amendment protects residents from "unreasonable searches and seizures." However, the FISC has ruled once that the surveillance program broke the law.

In simple terms, the Fourth Amendment requires the federal government to acquire a search warrant or a court order before it searches your personal information. In ordinary cases, this is done through a regular court. For secretive, terrorism-related cases, this is done through the FISC.

September 11 changed everything. The Patriot Act was brought into law a month later, and it changed certain definitions. Section 215 [PDF] specifically removed the requirement of seeking "probable cause." It also removes any existing privacy clauses between businesses and their customers.

And then year after year, as terrorism became at the front focus of so many minds, "national security" was increasingly used as a blanket reason to supersede any other reason. "We're investigating a possible planned act of terrorism" may well be too much information for the FBI to give out. Instead, it's "national security," and we're expected to go with it.

In the case of PRISM, the legality is difficult to determine. Is the data being used for purposes of preventing crimes and terrorism? Or is it simply being used to build a bigger picture of where people are going and what people are doing — as in non-prosecutable acts?

And because the Fourth Amendment is there to protect your rights as a citizen from prosecution, it's been argued before that the collection of data for intelligence purposes is not the same as the collection of data with the intention of the federal government prosecuting that person. It may fall foul of the intent and the "spirit" of the Fourth Amendment, but that would be for a court to decide.

Until a person is subject to prosecution, the Fourth Amendment can't really be invoked.

And even then, according to The Atlantic Wire, because almost every shred of data that citizens generate is shared with a third party, "none of that, on its own, has protection under the Constitution," according to Georgetown law professor David Cole.

In short, over the course of the last few years, these Fourth Amendment rights have been eroded. You can see in statute after statute the changing of words over the years to increasingly manipulate the spirit in which the Fourth Amendment was written.

"The law doesn't forbid purely domestic information from being collected," said Senator Christopher Coons (D-DE), who also noted that the secrecy around these programs makes it almost impossible to implement safeguards.

Senator Rand Paul (R-KY) has now gone as far as to introduce the Fourth Amendment Restoration Act, in a bid to restore the constitutional rights set out in the Bill of Rights [PDF], which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"

It comes to a head under the Obama administration

Even though the National Security Agency was created under President Truman, FISA was signed into law by President Carter in 1978, the Patriot Act was accepted by President Bush in 2001, and the FISA Amendments Act passed across President Obama's desk in 2008, typically when a scandal breaks, it rests on the person who's in office at the time.

So, while according to the documents all of this began during a time when Obama was campaigning for the White House, should this scandal deepen (and it very likely will), the fingers of blame will be pointing at the president.

The fact that this alleged dragnet surveillance network — whether it is in breach of the Fourth Amendment — was not shuttered goes to show that at least in some part, the Obama administration itself was complicit in maintaining this system, even though it had no hand in creating it.

With that, there's an apt example.

Guantanamo was created under the Bush administration, and Obama vowed to shut it down in his first term. Months into his second term, four years later, he renewed his efforts to see the detention camp shut down, which more than a decade later still holds de facto prisoners of war, in many cases without charges or trial.

Whether you criticize Obama and his administration or you support it, what we have here is a shift in the political and global sphere that marks a massive change in how the world functions in warfare.

Obama is the first "e-president." He is the first to really embrace social media, Internet culture, and open data sets across the government. At the same time, he arrived at the White House during a time in which the U.S. was under attack by the Chinese — not with soldiers marching down Pennsylvania Avenue in the middle of the day, but with a Beijing-based office full of cyberattackers and hackers.

With this vast amount of data at the U.S. government's disposal (thanks to the proliferation of online services from Google, Apple, Facebook, Microsoft, and so on), the Obama administration can use this vast amount of intelligence, which arguably infringes on U.S. residents' privacy on a massive scale, in order to surgically strike at enemies both domestically and abroad.

There's an argument to be made. What would we rather have: The warfare from mass casualties and deaths in foreign battlefields, or the invasion of privacy and the precise strike of an unmanned drone?

Obama may have redefined the way wars are fought, but that's not to say that it's necessarily right.

It was discovered during his time in office, and whether the White House actively knew about it, exploited it, or even used it for its own gain (which it probably did), it didn't curb it or shut it down. This scandal could deepen further. And when it does — and it will — it will hang around the neck of Obama's time in office like a concrete weight for generations to come.

Over the next few days and weeks, it's very likely that this scandal will deepen and widen. The WikiLeaks affair, even with more than a quarter of a million U.S. diplomatic cables leaking onto the Web, could look like child's play in a sandbox. The Watergate scandal, which led to the illegal wiretapping of President Nixon's opponents, leading to his resignation from office, could look small fry in comparison.

We'll have more as and when we get it.

Topics: Security, Government US, Privacy

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  • I hate to break it to ya

    This stuff has been going on in general for over a decade, thanks to the Bush era Patriot Act. That Act gave wide, wide latitude but apparently no one cared until Obama was in office.
    D.J. 43
    • Not quite

      Bush tried to spy on foreign calls originating or to known terrorists ONLY. The papers and libs gave him hell and exposed the whole program. Terrorists stopped using their current cell phones.

      Obama new phone program is spying on domestic calls ONLY, for some reason - and on ALL of them.

      His IRS has been singling out political enemies for "special treatment."

      A filmmaker is still in jail for supposedly starting the Benghazi riots, when - now we know - the administration knew all along it was Al Qaeda.

      That's a bit different.
      • Again,

        Name me the law that Obama's administration broke and the specific facts. It is again more than likely all of the real facts (not Faux News ones) will show that the Patriot Act from the Bush era made it perfectly legal.
        D.J. 43
        • You have issues....

          Even CNN has come out and fingered the administration for it's involvement in getting weapons to Syria via Turkey and giving even more credibility to "The Benghazi Incident". What will it take for you to realize that this was a huge cover-up?? Even funnier is that now they want to arrest terrorists for the plot (something Obama was trying to cover up). Rand Paul accused Hillary Clinton of knowledge of this during the Benghazi trials (What difference, at this point, does it make?) and now even a liberal news source admits knowledge of the weapons
          • wasn't finished....

            "(not Faux News ones)" hardly cuts it when liberal sources admit credibility months after conservative sources already pointed out the truth. I'll give you that Bush accomplished scaring the people with terrorism, however Obama was elected TWICE on transparent, non warring terms. You libs were duped twice by a man giving traction to all policies of a prior administration you so despised.
      • "known terrorists"

        Known by whom to be terrorists?
        John L. Ries
  • Did Waterwate start before the Nixon Administration?

    Ok answer that mr US history expert. So tell me again how something that was done Illegally by a President (Nixon) and another thing being done legally (Bush,Clinton, Obama) is akin to the same thing? Last time I checked, it has all been approved and signed into law by the US congress right? Even if creepy and borderline abusive, it is law and until proven illegal by some one than you can never compare the two.
    • US the most the most dangerous terrorist nation

      Fascist legalized crime can not be compared to an ordinary crime. You're right.
      Scheldon Fernandes
      • Yet,

        you have millions of people begging to come over. Interesting huh? I rather live in this most terrorist nation than the crapshoot that is 90% of countries out there. Ask the girls and Non-muslims how nice it is to live in the middle east? Or how great the warlords of africa treat their citizens or hows that Narco terrorism going for the Mexicans. I think I'll take my terrorist country thank you!
  • There is still a lot of creepyness going on

    Surprising for the most transparent administration ever lol
    Let's just hope they don't hand the information over to Democrat political organizations like the IRS did.
    • Ha! Ya...well...

      “Surprising for the most transparent administration ever lol”

      Its just like getting punched in the face by the lightest heavyweight of all time and saying "geeze! that really hurt like hell considering it came from the lightest heavy weight boxer of all time!!".


      Look; if you want personal security freedom and privacy you really have to demand it from your government and you have to expect no government wants to just give that away. There needs to be oversight and accountability. The public needs to make some decisions as to the balancing of scales between personal privacy as to public safety. By the end of the process, the public needs to be properly involved and informed and the government at that point will certainly carry out what they have been allowed to do if they feel they need to, and they need someone to watch to make sure they are not doing more without permission even when they feel they need to. These things will be done in secrecy and that’s whats often needed, and certainly as such the public will allow for leeway to that effect, but there has to be some knowledge of the public generally that this, or other similar activities, may or may not be going on at various times as the permissions of the law allow for secretive collection of certain kinds of data without warrants etc. under particular circumstances.

      But, the public becomes an idiot themselves if they simply turn a blind eye one day only to cry foul on another. The public needs to be involved, the decisions have to be discussed and then choices must be made and the government needs to be able to get on with what they are allowed to do if they feel they need to.
      • Correct

        Most of the time politicians and their supporters turn a blind eye to abuses by members of their own party (if not publicly defend them), only to decry similar abuses committed by members of the opposition. This allows both parties to get away with it, unless the public consistently refuses to defend or support abusers regardless of party.
        John L. Ries
        • The problem is this for each party

          Spinelessness for Democrats. They (in Congress) voted for the Patriot Act and marched in lock step with W. Bush. Foolishly, they thought Republicans would play by the same rules when their guy got in. Hypocrisy for Republicans. They protesteth too much when their guy isn't in office, yet they did not protesteth over the very unleashing of executive power that their guy initiated, when it happened.
          D.J. 43
          • They've strengthened it.....

            through the NDAA and have given our government the ability to detain without trial and, or even kill American citizens on ours or foreign soil. YOU DON'T NECESSARILY GET A CHANCE TO PLEAD THE 5th UNLESS YOU ARE PART OF THE GOVERNMENT !!
        • Very True..

          and all the more reason to promote a rational third party.
  • Uhuh...

    Stared in 2007 but it's Obama's fault. Sounds about right.
    • Change?

      So he stopped it, right? That's what I thought.

      Obama IS George W. Bush, except for the fact he doesn't speak english like a learning-disabled 4th. grade dropout. Same policies, same fear of everything, just the same.

      There's your change. How do you like it?
      • You are forgetting something...

        No president has run this country in decades. I don't care if he is black, white, red, yellow, liberal, conservative, religious, atheist, etc. Lobbyists and special interest groups are in full control of government. Who funds those? The rich and the mega-sized corporations.

        The next president will be the exact same as W. and Obama. Why? Who was the last "great" leader as president? Kennedy? Lincoln? No one that's worth the position is willing to run anymore.
        • To a large degree, your right.

          Here is the proof we see in the news today, yesterday and for years.

          Sane people who understand politics, people who are realistic and actually are educated in political thinking, foreign affairs, and understand economics, and really want to make large wholesale changes in the way the government works, seldom do if ever want to run for a position that could allow them to actually push hard enough for change that it might actually happen. Like a position of President. That’s not to say that people who understand politics, people who are realistic and actually are educated in political thinking, foreign affairs, and understand economics do not run for president, they just don’t do so thinking they are going to make some kind of whole sale changes to the way government IS run. And that’s because they ARE people who understand politics, people who are realistic and actually are educated in political thinking, foreign affairs, and understand economics. They already have a plenty good idea that when the government of a huge powerhouse like the United States is actually running fairly well and with at least some degree of efficiency the likelihood of being able to make some huge change that turns the tables for the better in some earth shaking way is practically impossible and may well result in disaster due to the monstrous complexity in massive governments in large well off countries.

          Every dollar moved from one location to another comes with cries of foul from someone, every shift in policy or alteration of a long held view will come with cries of traitor or carpetbagger from one corner or another. Every new path taken will be blocked by one opposed or another and every solution proposed will cause ripple effects that will cost millions on millions of dollars just to figure out what those effects will be, never mind the cost of creating solutions for any problematic ripples. Nobody who has a brain and knows how to use it, in other words, people who are realistic and actually are educated in political thinking, foreign affairs, and understand economics, know you have to make smaller, perhaps important and meaningful, but smaller changes in a step by step manner. Deciding the ship is going in the wrong direction entirely and trying to wheel it around hard and suddenly is pure disaster if the ship is one of the largest in the world.


          Be very very worried about the politician who SAYS this is whats needed to be done. If you think for an instant, even one instant there is some politician that’s ever lived who had some magical skill and knowledge that could just somehow sit down and figure out the magic formula to put a huge rich, powerful country like the United States on the perfect track, you’re nuts. People who say it needs to be done and they want to be elected to do it are either nuts or liars. Its beyond complex. It would take a political mind beyond that of what Einstein’s was for science. People who usually think they can even do this kind of thing at a large municipal level are uneducated nuts. They quite honestly really often don’t even know what they are often talking about, as they live in a dream world where they have the answers and everyone who disagrees with them can take a hike. They fail at the very basic understanding of political leadership greatness is actually consensus. Political leaders who think they can just turn an entire country to a different direction within a couple years are often actually outright madmen who have to take power by force. And then they typically set upon a path that usually results in their own private enrichment and the slow destruction of the countries entire core, which is its people.

          We have seen this over and over again in history, it has always been the way. Its fact and we know it because exists in many countries today.

          Whos fault is this dilemma? Nobodies. Not if you value freedom.

          With freedom comes disagreement and choices. With freedom comes viewpoints and debate. Unfortunately with freedom also comes having to tolerate some things you hate so that others will have to tolerate things they hate, but you must have in your life. Or you can go with a lunatic who tells you HE will right the ship. The nut who says he knows best. The one who in reality cannot see the forest for the trees.

          The one who eventually will make all the trees equal; by hatchet axe and saw.
      • Somewhat correct

        I agree in that he mostly appointed Bush carryovers and in the financial areas, the same Wall Street people. Disappointing. However, Romney would have been far more brutal to the working class and poor.
        D.J. 43