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Saturday
Jun082013

NSA snooping: Winding path from Clinton’s CALEA to Obama’s 'peacetime' dilemma

The controversy over government spying on citizens has erupted again, although the acrimony is at lesser volume than it was during the presidency of George W. Bush. A major eruption didn’t even occur as President Barack Obama reauthorized a bill he had roundly criticized during his campaigns.

Fact is, the current spying scandal is the result of a winding path that actually began with a bill passed during the presidency of Bill Clinton.

Clinton’s administration laid groundwork that would significantly and broadly influence later electronic spying.

Although in 1994 public use of the Web was still in its toddler phase, Clinton's team saw the opportunity in capitalizing on developing technology for spying and the result was the Communications Assistance for Law Enforcement Act (CALEA).

Cisco, one of the major players in production for the architecture of the Web, has a statement on the corporate website:

 "Increasingly, legislation is being adopted and regulations are being enforced that require service providers (SPs) and Internet service providers (ISPs) to implement their networks to explicitly support authorized electronic surveillance."

The Guardian, the paper that actually gave legs to coverage of the current controversy about snooping, explained the complexities (boldface added):

First, lots of data bound for those companies passes over what are called ‘content delivery networks’ (CDNs), which are in effect the backbone of the internet. Companies such as Cisco provide ‘routers’ which direct that traffic. And those can be tapped directly, explains Paolo Vecchi of Omnis Systems, based in Falmer, near Brighton…’The Communications Assistance for Law Enforcement Act (Calea) passed in 1994 forces all US manufacturers to produce equipment compliant with that law,’ says Vecchi. ‘And guess what: Cisco is one of the companies that developed and maintains that architecture.’ Cisco's own documents explain its Calea compliance.

It’s troubling that a paper from Great Britain broke a story so vital to the interests of U.S. citizens. That fact provides indirect commentary on the weakness of current major media as watchdog.

President George W. Bush’s administration responded to acts of war committed on the U.S. on September 11, 2001 with the Patriot Act—the bill impacted a number of U.S. laws on surveillance, including the Foreign Intelligence Surveillance Act and laws on money laundering—and the public accepted it because the country was still reeling from the 9/11/2001 attacks. Civil libertarians raised vocal concerns and many Democrats eventually joined in, but the Act stood as it stands today.

Obama signed the reauthorization of the Act but he did nothing about issues he criticized during his campaigns.

The Law Librarian Blog used an analysis from the American Civil Liberties Union to explain the most controversial aspects of the law—the latest version of it was signed by Obama in May, 2011:

─Section 215 of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.

─Section 206 of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.

 ─Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.

The Guardian story notes the progression and multiplication of corporations snared, beginning with Bush's tenure at a time when Democrats had majorities in both the House and the Senate:

"Microsoft was the first to be included, in September 2007. Yahoo followed in March 2008, Google in January 2009, Facebook in June 2009, Paltalk, a Windows- and mobile-based chat program, in December 2009, YouTube in September 2010, Skype in February 2011 (before its acquisition by Microsoft), AOL in March 2011 and finally Apple in October 2012."

Courtesy of Mother Jones, normally a publication firmly aligned with Democrats, Americans are now being told that Obama’s Dept. of Justice is fighting the release of a legal opinion about domestic spying:

[T]he Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

The Washington Independent covered controversy over government spy policy in 2009 shortly after Obama took office. One of Obama’s primary messages to voters involved the legality of such spying; he was harshly critical of it. The Independent said:

In 2007 and 2008, as the Democratic-led Congress and the Bush administration collaborated in rewriting several elements of the Foreign Intelligence Surveillance Act, civil libertarians in and outside of Congress warned that the changes would institutionalize wide-ranging surveillance by the National Security Agency on U.S. citizens.

What is most troubling is the dilemma created by Obama’s words versus his actions. On the one hand, it appears the administration has broadened domestic spying in a manner ensnaring all Americans. On the other, Obama has called for an end to the "boundless global war on terror."

Months before the heated November, 2012, presidential election, a White House staffer told National Journal, “The War on Terror is over.”

Obama’s present call, coupled with past statements claiming al Qaeda was “on the path to defeat,” suggests the U.S. is entering a peacetime era.

Why, then, does the government maintain sweeping powers more appropriate to the wartime era Bush 43 presided over? Why is it necessary to access metadata for millions who are innocent of any wrongdoing?

None of those questions have been addressed by our president.

Furthermore, in light of the impact on our liberties, it is essential that we as a nation discuss our current immigration and refugee policies. We might began by asking why we have permitted the United Nations to exercise undue influence over both issues.

(Analysis by Kay B. Day/June 8, 2013)

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