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

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.
Written by Zack Whittaker, Contributor
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.

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