June 2013

Obama's Civil-Liberties Record Questioned

The disclosure of a broad government effort to collect phone records of millions of U.S. consumers has rekindled a debate about President Barack Obama's commitment to civil liberties, with some lawmakers and advocacy groups saying he has broken a campaign pledge to combat terrorism in ways that protect basic freedoms.

Obama's record on civil liberties was already drawing renewed scrutiny over reports that his administration has investigated journalists as part of criminal leak cases, his increased use of drones and other matters. As a candidate in 2008, the-Sen Obama took aim at then-President George W. Bush's assertion of certain executive powers in fighting terrorism. Once in the White House, he did away with some of the tools used by Bush's administration while keeping others intact. In certain respects, the counterterrorism tactics of the two Presidents seem indistinguishable, some civil-liberties advocates say.

President Obama’s Dragnet

[Commentary] Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama Administration issued the same platitude it has offered every time President Barack Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights. Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret orders to kill an American suspected of terrorism — especially coming from a President who once promised transparency and accountability.

The Administration has now lost all credibility on this issue. We are not questioning the legality under the Patriot Act of the court order disclosed by The Guardian. But we strongly object to using that power in this manner. It is the very sort of thing against which Mr. Obama once railed, when he said in 2007 that the surveillance policy of the George W. Bush administration “puts forward a false choice between the liberties we cherish and the security we provide.” The Patriot Act needs to be sharply curtailed if not repealed.

The Spying on Americans Never Ended

[Commentary] The Guardian newspaper reported on a secret court order showing that a subsidiary of Verizon was required to turn over all of its customers' records for a three-month period. Members of Congress soon confirmed this was part of a larger collection program dating back seven years. The most tangible problem is the invasion of Americans' privacy.

The so-called metadata collected by the NSA includes information about our calls, such as the numbers we call, the numbers of those who call us, when the calls are made, and for how long. This information may seem relatively trivial at first blush. Yet, pieced together, these details can paint a detailed and sensitive picture of our private lives and our associations. Calls to a therapist's office, Alcoholics Anonymous, repeated late-night calls to a friend's wife—the existence of these calls can reveal as much in some instances as the calls' actual content. Another concern is legality. The program is taking place under Section 215 of the Patriot Act, which allows the government to obtain records and other "tangible things" only if they are relevant to an authorized foreign-intelligence or international-terrorism investigation. It is simply not possible that all of the phone records of every American are relevant to a specific authorized investigation. Such an interpretation of "relevance" (or of "investigation") would render Section 215's limitation utterly meaningless. There may be a constitutional concern, as well. Whether the program's usefulness would justify the incursion into Americans' privacy is a question of balancing competing policy priorities—a core question of public policy that is for the American people, not a handful of intelligence officials, to debate and decide. Why were we not given that opportunity?

A public debate on the government's surveillance authorities is long overdue. The silver lining to this week's revelations is that we may finally begin to have it.

[Goitein is co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York]

Thank You for Data-Mining

[Commentary] Well, another day, another Washington furor. This one is over a National Security Agency phone data monitoring program, but unlike the other White House scandals there seems to be little here that is scandalous. The existence of the program was exposed years ago and such surveillance is a core part of the war on terror. The outrage this time seems to stem from the fact that the government is widely collecting call records, not merely those associated with a particular suspect or group. But this fear misunderstands how the program works. From what we know, the NSA runs algorithms over the call log database, searching for suspicious patterns over time. The effectiveness of data-mining is inversely proportional to the size of the sample, so the NSA must sweep broadly to learn what is normal and refine the deviations. The real danger from this leak is the potential political overreaction.

The government needs to explain about the NSA’s phone data program

[Commentary] According to Senate overseers of America’s intelligence community, the federal government has been collecting massive quantities of so-called metadata about Americans’ phone calls for seven years. Their revelation came hours after the Guardian published what appears to be a copy of a secret court order to a unit of Verizon, requiring the phone company to give government counterterrorism agencies information about all the calls on its network — records of originating and receiving phone numbers, the duration of calls and, it appears, cellphone location — on an ongoing basis. One of the many things that are still unclear is why Americans didn’t know about this program on an ongoing basis.

In the days after the Boston bombings, many asked why the government didn’t connect the dots on the Tsarnaev brothers. Now, many are asking why the government wants so much information about so many Americans. The legitimate values of liberty and safety often compete. But for the public to be able to make a reasonable assessment of whether these programs are worth the security benefits, it needs more explanation.

Blogger, With Focus on Surveillance, Is at Center of a Debate

After writing intensely, even obsessively, for years about government surveillance and the prosecution of journalists, Glenn Greenwald has suddenly put himself directly at the intersection of those two issues, and perhaps in the cross hairs of federal prosecutors.

Greenwald, a lawyer and longtime blogger, published an article in the British newspaper The Guardian about the existence of a top-secret court order allowing the National Security Agency to monitor millions of telephone logs. The article, which included a link to the order, is expected to attract an investigation from the Justice Department, which has aggressively pursued leakers. Greenwald followed up with an article written with a Guardian reporter, Ewen MacAskill, that exposed an N.S.A. program, Prism, that has gathered information from the nation’s largest Internet companies going back nearly six years.

“The N.S.A. is kind of the crown jewel in government secrecy. I expect them to react even more extremely,” Greenwald said in a telephone interview. He said that he had been advised by lawyer friends that “he should be worried,” but he had decided that “what I am doing is exactly what the Constitution is about and I am not worried about it.”

Cost could complicate school broadband plan

Senior Administration officials said ConnectED would require a one-time infusion of capital that would cost individual Americans little.

Administration officials expect to pay for part of the program through savings rung out of the Universal Service Fund. That most likely isn’t going to be enough to increase capacity for all the schools and educational institutions that may want it, according to Federal Communications Commission sources. Requests from schools already exceed the amount available from the $2.3 billion-dollar E-Rate fund. E-Rate is part of the Universal Service Fund, which is designed to give all Americans access to telecommunications. Administration officials conceded to reporters that the program could bump up the Universal Service Fund charge on customers’ monthly phone bills by no more than 40 cents.

Education Secretary Arne Duncan said it’s not clear that the telephone charge would have to go up, or by how much, until the Federal Communications Commission looks more closely at existing funding streams and the needs of the initiative.

Clarifying What I Would Do If I Were FCC Chair

[Commentary] During a Free State Foundation panel, I stated that one of my five priorities as Federal Communications Commission chair would be to “[e]nsure that the agency has authority to protect consumers and competition with regard to broadband Internet access, depending on the DC Circuit’s decision in the open Internet case.” This, and comments from the other panelists, precipitated a question as to what we would do if the FCC were to lose Verizon’s legal challenge to the FCC’s open Internet rules.

My response was clear. I said that Title II of the Communications Act was the most legally defensible way to preserve the FCC’s authority over broadband Internet access, and that former Chairman Genachowski should have classified broadband Internet access as a “telecommunications service” under Title II when promulgating the open Internet rules, rather than trying to find the remaining threads of ancillary authority left to the agency under the DC Circuit’s Comcast decision. I also reminded the audience that to the extent that Verizon is challenging the FCC’s authority, it puts not only the open Internet rules at risk, but all other rules the FCC might promulgate that affect broadband competition and consumer protection. However, the Verizon case is now before the DC Circuit, and while I do believe the FCC has a pretty weak case, it has been significantly strengthened by Justice Scalia and the Supreme Court’s decision in Arlington County v. FCC, which held that a court must give an agency discretion as to the agency’s determination of the scope of its own authority. As I said on the panel, had the Supreme Court gone the other way, it would have been “game, set, match” for Verizon and the Arlington decision “breathes life into the FCC’s case.”

U.S.-China cybersecurity meetings have Silicon Valley anxious

When President Barack Obama begins two days of meetings with Chinese President Xi Jinping in Southern California on June 7, in part to discuss China's alleged computer thefts of some of this nation's most sensitive secrets, many Silicon Valley businesses will be monitoring the talks with intense interest.

This area is widely considered a key battleground in the country's war on cybercrime, and while skeptical of the meeting's outcome, many Silicon Valley executives hope Obama will win concessions from Xi to help halt the attacks. In recent years, tech companies here have been targeted by hackers, and reports that some of the computerized break-ins have been directed by Chinese authorities has corporate officials throughout Silicon Valley worried.

"They are freaking out," said Patrick Peterson, CEO of Palo Alto-based Agari, one of the legions of security companies in the region that offer software and other products to deter hackers. "It's a flaming-hot issue, which has the industry extremely concerned all the way up to the board level."

The meetings are likely to cover a variety of topics, ranging from economic issues to the threat posed by North Korea's nuclear weapons. But White House officials say cybersecurity will be a major focus, and they expect the two nations to form a working group to begin wrestling with the problem in detail in July.

Europe Continues Wrestling With Online Privacy Rules

More than a year ago, the European Union’s top justice official proposed a tough set of measures for protecting the privacy of personal data online. But because of intense lobbying by Silicon Valley companies and other powerful groups in Brussels, several proposals have been softened, no agreement is in sight and governments are openly sparring with one another over how far to go in protecting privacy.

On June 6, justice ministers from the European Union’s 27 member states agreed to a business-friendly proposal that what companies do with personal data would be scrutinized by regulators only if there were “risks” to individuals, including identity theft or discrimination. The ministers debated a proposal that would no longer require companies to obtain “explicit” consent from users whose personal data they collect and process, instead of “unambiguous” consent, which is considered to be a lower legal threshold. And they discussed a proposal on balancing an individual’s right to data protection with other rights, including the freedom to do business. The ministers deferred discussion of the other most fractious provision, the so-called right to be forgotten. But in recent weeks, public comments by lawmakers and draft language suggested a softening of approach.

Benton

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