This past week, the Federal government threw a one-two punch that will effectively destroy the Internet as we know it. Demonstrating, once again, his talent for obfuscation and misdirection, President Obama made a speech about reforming the NSA and controlling surveillance that actually officially recognized, sanctioned and even expanded the NSA’s domestic spying and cyber-warfare.
While pundits and activists quickly pointed to the President’s “weakness” in not implementing real changes in the spying policies, there was nothing weak about Barack Obama’s speech. True enough, this wasn’t the conciliatory speech some people wanted or even expected; he didn’t apologize for the atrocious mangling of our civil rights he’s overseen. But he wasn’t hiding from the outrage. Rather, he told us in no uncertain terms that he sees a need to spy on us, has what he claims are the laws in place to let him do it and has the will to continue and expand upon it. It was a chilling moment: a bully telling us “how it’s gonna be”.
Obama from the bully pulpit: nothing will change
At the same time, the federal courts last handed down a decision which also, if upheld on appeal, obliterates the Internet as we know it: throwing out net neutrality rules and actually declaring the Federal Communications Commission legally incapable of regulating the Internet’s vitally important high speed broadband service.
The President’s speech is the more infuriating, the court decision the more dangerous but, taken together, they present a horrifying vision of a government whose homicidal activities are accompanied by its destruction of democratic protection. The same government that is fighting some kind of war in every part of the world is fighting an unrestrained war on our freedom and liberty here at home. I’ll have something to say about net neutrality later this week but first…our President and his war on our rights.
Barack Obama has a communications style that is, by now, well-known: he hypes a speech as a “major address”, speaks for 45 minutes or so and contextualizes everything historically (frequently alluding to major events in U.S. history as influencing his decisions). In this speech, he started with: “At the dawn of our Republic, a small, secret surveillance committee borne out of the ‘The Sons of Liberty’ was established in Boston. The group’s members included Paul Revere, and at night they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots.” That first sentence should tip us off to what’s coming: this man can connect the NSA’s attacks on our freedom with Paul Revere’s ride.
He then shifts, in virtually every speech, into his main argument, which is to re-position an ongoing debate. Here we are in the middle of the speech: “…just as ardent civil libertarians recognize the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse as intelligence capabilities advance, and more and more private information is digitized.”
That’s a complete lie. “Ardent” or not, civil libertarians generally consider these “robust intelligence capabilities” unconstitutional and illegal as well as ineffective and completely unnecessary. They’ve produced libraries of studies demonstrating that. Try to find a statement by any major civil liberties organization supporting “robust intelligence capabilities” of the type we’re seeing. On the other hand, national security leaders haven’t acknowledged any “potential for abuse” — at least not in recent policy presentations and arguments. They first lied that none of this spying was taking place, then they defended it robustly and now they are proposing its continued expansion.
“As a mea culpa for the government’s overzealous surveillance techniques,” Businessweek’s Joshua Brustein points out, “the president’s speech was woefully lacking. He hit all the fuzzy themes guaranteed to drive critics batty.”
What the President was doing here was shifting the argument to avoid touching on the main issue: that the spying on U.S. citizens through the indiscriminate and wholesale collection of personal data and the content of absolutely legal and protected communications is a major crime and that his Administration is a criminal enterprise. One can argue with that but it’s what many people are saying and no honest government official should ignore it.
His definition of proscribed spying “does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat,” wrote Bart Gellman in the Washington Post. “Alongside the invocation of privacy and restraint, Obama gave his plainest endorsement yet of ‘bulk collection,’ a term he used more than once and authorized explicitly in Presidential Policy Directive 28.”
In short, in the only history-making part of the speech, he made bulk data-capture of his citizens’ private and personal data an established and ordered policy. There will be no turning back by this Admininstration.
That established, the President made a few substantive statements but promised almost nothing except that aggressive NSA and related government surveillance would continue basically unchanged. Any hope that the Obama Administration would back off from its virtual police state policies is now dashed.
“We cannot unilaterally disarm our intelligence agencies,” he said, addressing in a short sentence the issue everyone tuned into the speech to hear about. “There is a reason why blackberries and I-Phones are not allowed in the White House Situation Room. We know that the intelligence services of other countries – including some who feign surprise over the Snowden disclosures – are constantly probing our government and private sector networks, and accelerating programs to listen to our conversations, intercept our emails, or compromise our systems.”
The most important question isn’t what other governments are doing to us; it’s what our own government is doing. Obama’s only answer was that it was doing things that were completely legal. “..nothing that I have learned…indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens,” he said. “…The men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They are not abusing authority in order to listen to your private phone calls, or read your emails.”
Well…but they are! They are listening to calls, recording numbers and call locations on almost every cell phone, capturing hundreds of millions of email (virtually all Gmail data and that of most major webmail services), intercepting webform information, crippling the encryption system to read encrypted data and collecting millions of on-line video and audio files.
The President is arguing that they’re not reading this stuff or listening to it so it’s not a constitutional infraction and this is a critical legal argument that is the pillar of the Obama position on spying. In fact, the constitution doesn’t say one word about reading or listening or examining; it protects you against the collection of your data and other materials. That — the collection — is the government intrusion that is proscribed by our laws and Constitution.
Given that massive “no comment”, no one could expect him to announce real reform and he didn’t.
Instead, the President called for some changes in spying administration that were either non-impactful or non-specific. He proposed a review panel to observe the functioning of the FISA court (the secret court that approves data-gathering and that is not really a court, since there is no plaintiff’s attorney arguing against a spying program, only judges who listen just to what the government is saying it needs or wants to do) without specifying who would nominate the panel or how it would do its reviews.
He proposed a time limit on National Security letters: up to now, you or an organization with which you are associated can’t admit that you’ve received from the FBI one of those demands for information until the ban on such admission is lifted and there’s no time limit for that. The president is proposing a time-limit but didn’t specify how long that can be or address the real issue: how in the world can the government demand data from you (or your boss, or your library) while not allowing you to tell anybody that they did (or allowing your boss, library, etc., to tell you they asked for it)?
He also modified the NSA’s policy of “three contact” capture of cell phone and email information. Right now, if someone who is suspected of illegal activity contacts someone else and that someone else contacts you, that’s three degrees of separation, and your data will be captured and analyzed. Obama is proposing that the NSA stop at the guy who gets the email or call from the suspect. But since nobody knows how these people identify “suspects”, we don’t know if we’re getting email from one. Chopping off the third level of surveillance still leaves us vulnerable to the government’s surveillance because we could be at the second level — in fact, activists will most likely find themselves at this level — and never know it.
In what is perhaps the most commented-upon part of the speech, the President made clear that the NSA will continue to collect data from virtually all cell phone calls but that these will be analyzed only after a court order. The question is why capture them at all if you’re not doing anything with them? Or, put another way, how do we know that a government that has lied to us about all of this data-capture is suddenly going to start telling the truth about its analysis?
He also said the government should start to back out of phone data collection and leave that to the phone companies who would, under his new plan, store all phone data and then turn it over to the government under court orders. But there was no indication of an order being made — he just said this is something he’d like to see. It’s hard to see how this would change anything but it’s probably not important because it’s probably not going to happen. The phone companies don’t want to do it, probably because they know the potential for leaks and theft of data in hanging onto all that information, and don’t want to face the resulting lawsuits.
Finally, our government will also continue and enhance its capture of data world-wide. Saying that countries spying on each other is as old as countries themselves, Obama defend the NSA’s reported capture of phone and email data from governments and individuals in over 180 countries, the robbery of data that is stored on computers all over the world and the cyber-war the government wages against many countries, replete with theft, sabotage and actual installation of data-capture devices in their computers. He claimed that this isn’t “domestic spying” but that’s absurd. It’s impossible to isolate data-capture that way, because many of us in this country communicate with people in other countries. I do that every day. Once you do, your data is captured by the NSA without a court order or any legal restriction.
But to argue with these points is to fall into the President’s carefully constructed and powerfully gripping trap. This isn’t about specific reforms or actions or techniques. It’s not about how you implement aspects of what is, by any sane measure, a police state surveillance system. Most of us don’t care and shouldn’t. The surveillance system itself is wrong and should be dismantled.
That our government would take a system we created to be able to talk to each other across national boundaries, economic and political systems and stages of development — a system that would allow communication among the entirety of humanity — and turn it into a vehicle for domestic spying which trashes the Constitution and democratic norms as well as a form of international warfare, is an outrage and a crime of staggering proportions. It reflects a despicable cynicism about people, our interactions and how important those interactions are for our future. That kind of cynicism was obvious in Barack Obama’s speech and the dangers of his policies should now be crystal clear to us all.
Paul Revere and his freedom-loving compatriots would be riding the countryside crying out their warning that the tyrants are coming.