It is no great revelation that President Obama has galvanized many of the Bush era surveillance practices, raising them almost to an art form. Thus it comes as no surprise that his administration has expanded the NSA’s warrantless surveillance of American’s Internet traffic without public notice or debate. This time the target is malicious computer hacking. The disclosures are part of newly released documents by Edward Snowden, and come amid growing computer threats, and a simultaneous call for greater accountability by government agencies regarding surveillance.
What is worrisome is that warrantless wiretapping is deemed acceptable, there has been no debate over it, and it has persisted since 2005. Attention around the nation has been focused on the drama surrounding the sunset of the Patriot Act Section 215 provisions, even as opponents of bulk surveillance warned that the government still retained much spying power over individual’s communications
The argument is over national security versus personal liberty, though everyone agrees that national security is important. Similarly, giving the NSA the power to monitor the hacking exploits foreign governments is deemed necessary, though critics contend it should not be without public discourse or oversight, as there are dangers of surveillance overreach.
The NSA is not supposed to get involved in law enforcement, but that is the direction is it heading, according to some, and is one of the perceived dangers – especially if it can’t determine whether the target is a foreign government or a criminal gang. The other is that, in monitoring the data flowing to a hacker, the government can also gather significant amounts of American’s information – ranging from private emails to business dealings. In 2008, under the FISA Amendment Act, Congress legalized the surveillance program with the proviso that only non-citizens abroad be targeted – at about the time that it authorized spying on foreign governments.
That was expanded in 2012 when the Justice Department granted secret approval for the searches of cyber signatures and Internet addresses, relying on FISA Court approval of surveiling foreign governments, but expanding on it as long as the NSA had evidence that the hackers were working for a specific foreign power.
Just about at that time, the FBI had obtained a new type of wiretap order from the FISA court – specifically for cyber security investigations – which allowed it to target Internet data flowing to or from specific Internet addresses linked to certain governments. They began to collaborate with the NSA, which would utilize the FBI’s cyberdata repository in Quantico, Virginia, for its intercepted traffic.
The outgrowth of all this collusion is that, as a result of the expansion of surveillance powers and subsequent spying practices, information about Americans’ private communications sometimes gets swept up incidentally with the information from foreign targets, and can then be used by prosecutors in criminal cases. Because of this dilemma, some have suggested that the collected data be kept out of the regular repositories.
While any hint of over-intrusive surveillance by government agencies is troubling, the fact that it has often been cloaked in secrecy is particularly vexing. However, it should come as no surprise, because the last six years of the Obama administration are consistent with the actions of this administration’s agencies, and the opposite of his public persona and rhetoric.
Back in February, at a Silicon Valley conference aimed at cyber security Obama talked a lot about transparency, without mentioning any shift in direction regarding cross-border spying on foreign hackers. He cautioned that we must be “constantly self-critical” while having an ongoing, “open debate about it”.
He may have gotten the self-critical part right. The world still waits for the open debate.