The Surveillance Reforms Obama Supported Before He Was President... Are Remarkably Similar To Task Force's Proposals

from the look-at-that dept

What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica's Creative Commons license. However, given the White House task force's recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes...

When the House of Representatives recently considered an amendment that would have dismantled the NSA's bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.

As a senator, Obama wanted to limit bulk records collection.

Obama co-sponsored a 2007 bill, introduced by Sen. Russ Feingold, D-Wis., that would have required the government to demonstrate, with "specific and articulable facts," that it wanted records related to "a suspected agent of a foreign power" or the records of people with one degree of separation from a suspect. The bill died in committee. Following pressure from the Bush administration, lawmakers had abandoned a similar 2005 measure, which Obama also supported.

We now know the Obama administration has sought, and obtained, the phone records belonging to all Verizon Business Network Services subscribers (and reportedly, Sprint and AT&T subscribers, as well). Once the NSA has the database, analysts search through the phone records and look at people with two or three degrees of separation from suspected terrorists.

The measure Obama supported in 2007 is actually similar to the House amendment that the White House condemned earlier this month. That measure, introduced by Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., would have ended bulk phone records collection but still allowed the NSA to collect records related to individual suspects without a warrant based on probable cause.

The 2007 measure is also similar to current proposals introduced by Conyers and Sen. Bernie Sanders, I-Vt.

As a senator, Obama wanted to require government analysts to get court approval before accessing incidentally collected American data.

In Feb. 2008, Obama co-sponsored an amendment, also introduced by Feingold, which would have further limited the ability of the government to collect any communications to or from people residing in the U.S.  

The measure would have also required government analysts to segregate all incidentally collected American communications. If analysts wanted to access those communications, they would have needed to apply for individualized surveillance court approval.

The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the PRISM program. That legislation — the FISA Amendments Act of 2008 — also granted immunity to telecoms that had cooperated with the government on surveillance.

The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.

Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.

Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own "minimization" procedures. A leaked 2009 document said that analysts only needed permission from their "shift coordinators" to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.

As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.

Feingold's 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63.

The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans' privacy rights.

As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.

Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.

One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was "narrowly tailored" to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.

The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon's surveillance court order included a gag order.

Meanwhile, Microsoft and Google have filed motions with the Foreign Intelligence Surveillance Court seeking permission to release aggregate data about directives they've received. Microsoft has said the Justice Department and the FBI had previously denied its requests to release more information. The Justice Department has asked for more time to consider lifting the gag orders.

As a senator, Obama wanted to give the accused a chance to challenge government surveillance.

Obama co-sponsored a 2007 measure that would have required the government to tell defendants before it used any evidence collected under the controversial section of the Patriot Act. (That section, known as 215, has served as the basis for the bulk phone records collection program.) Obama also supported an identical measure in 2005.

Both bills would have ensured that defendants had a chance to challenge the legalityof Patriot Act surveillance. The Supreme Court has since held that plaintiffs who cannot prove they have been monitored cannot challenge NSA surveillance programs.

Those particular bills did not make it out of committee. But another section of the Foreign Intelligence Surveillance Act requires that the government tell defendants before it uses evidence collected under that law.

Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.

The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.

On July 30, the Justice Department reversed its position in one bomb plot prosecution. The government disclosed that it had not gathered any evidence under the 2008 law now known to authorize sweeping surveillance.

But that's not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government's wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.

Dratel only learned that the government had used Moalin's phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.

Reuters has also reported that a U.S. Drug Enforcement Administration unit uses evidence from surveillance to investigate Americans for drug-related crimes, and then directs DEA agents to "recreate" the investigations to cover up the original tip, so defendants won't know they've been monitored.

As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.

Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn't make it out of committee.

Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.

As a senator, Obama wanted the government to declassify significant surveillance court opinions.

Currently, the attorney general also gives congressional intelligence committees "significant" surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.

Before Edward Snowden's disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court's "primary order" compelling telecoms to turn over metadata.

In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.

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Filed Under: barack obama, nsa, reforms, surveillance, task force

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  • identicon
    Anonymous Coward, 19 Dec 2013 @ 11:40am

    It's the damn Vogons again...

    "It is a well-known fact that those people who must want to rule people are, ipso facto, those least suited to do it... anyone who is capable of getting themselves made President should on no account be allowed to do the job."
    -- Douglas Adams

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    out_of_the_blue, 19 Dec 2013 @ 11:42am

    In other words than your italic disclaimer: it's FREE FILLER.

    Just give us a HINT of what YOU believe or want, Mike. Any damn fool can COPY.

    Can Mike pass the Turing Test? Is he human or a Mimeograph? Well, just try to pin him down on any more complex than what he had for lunch! That's one of the sports here.


    reply to this | link to this | view in chronology ]

  • identicon
    Glen, 19 Dec 2013 @ 11:56am

    What I would give for some member of the press to bring this up to the Pres to get his react. I know it won't ever happen since the press want to stay on his good side to get all those soft ball propaganda....exclusives.

    reply to this | link to this | view in chronology ]

  • icon
    RyanNerd (profile), 19 Dec 2013 @ 12:06pm

    A hypocrite in politics?

    Press: Mr. President are you lying the foundations for a police state?
    Obummer: You know, I'm glad you asked that question.
    Press: Well, Mr. President could we have the answer?
    Obummer: Well yes, of course, I was just about to give it to you, if I may. Yes as I said I'm glad you asked me that question because it's a question that a lot of people are asking, and quite so, because a lot of people want to know the answer to it. And let's be quite clear about this without beating about the bush the plain fact of the matter is that it is a very important question indeed and people have a right to know.
    Press: Mr. President, we haven't yet had the answer.
    Obummer: I'm sorry, what was the question?

    reply to this | link to this | view in chronology ]

  • identicon
    Jerrymiah, 19 Dec 2013 @ 12:11pm

    Reforms Obama Supported Before He Was President

    That was before he was first elected. Once he was elected, he got told by the NSA who was the real boss and then discarded his own ideas. He wanted to make sure he would received his next pay cheque from the defense industrial complex.

    reply to this | link to this | view in chronology ]

  • icon
    Machin Shin (profile), 19 Dec 2013 @ 12:22pm

    Really sucks that we cant have "Senator Obama" running things instead of "President Obama". From that I keep seeing I actually kind of like Senator Obama, but this President Obama is a worthless waste of space.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2013 @ 12:37pm

    You know, every so often Obama likes to refer to what he supported as a senator. Yet when you get down to it what he supports as president is not the same things at all. It makes one question why the sudden reversal after all those years of going the other way.

    If there were ever a condemning notion as to why the NSA shouldn't be allowed to spy upon everyone here it is. There was mention than when Senator Obama decided to run for president the NSA was all over his private communications. No doubt there is a connection in the flip flop of then Senator Obama and now President Obama.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Dec 2013 @ 1:31pm


      The NSA has absolutely all the data on everyone. They can track a person's every move, listen in on phone conversations, observe everything done online, even secretly activate a smartphone's camera and microphone.

      There is no organization more capable of blackmail.

      reply to this | link to this | view in chronology ]

  • icon
    jupiterkansas (profile), 19 Dec 2013 @ 12:42pm

    We need more good senators like Obama, and maybe we can even elect one as president.

    reply to this | link to this | view in chronology ]

  • identicon
    Trevor, 19 Dec 2013 @ 12:51pm

    Letter 44

    There is a comic book being published at the moment published by Oni Press. The basic premise of the books is as follows:

    The 43rd President started wars in the middle east, put the country in drastic debt, and became very unpopular. A candidate ran on the ideas of hope, change, and reigning in the debt, stopping wars, and building up America. When he was sworn in, he opened the letter left by 43 welcoming him to the job and giving pointers. In the letter, 43 told 44 that early in his presidency, NASA discovered an alien presence in the asteroid belt. Fearing the worst, he started wars so the world would have a generation of war veterans with experience to fight if needed, and created massive debt developing weapons, defenses, and an expedition to investigate the presence. The book revolves around the new president dealing with this information and having to decide whether to stick to his campaign promises or keep the status quo.

    What if something similar occurred to Obama? What if, once in office, he was made aware of some double secret reason for all the surveillance, and only strengthened them because it scared the bejesus out of him?

    What if Bush found some Cylon skinjobs, and beefed up the NSA to weed out any other imposters, and Obama is just trying to catch them faster? What if something less Sci-Fi was discovered, and Obama just wants to get rid of it?

    Note: I am completely against the NSA spying and all the secrecy. I'm just saying it reminded me of that book.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 19 Dec 2013 @ 1:27pm

      Re: Letter 44

      Fearing the worst, he started wars so the world would have a generation of war veterans with experience to fight if needed

      The plot lost me right there. Preparing for war by engaging in activities that kills off people of fighting age? That's moronic. No president could be stupid enough to do that.

      Wait, the story has Bush making this decision?

      I stand corrected.

      reply to this | link to this | view in chronology ]

      • identicon
        Trevor, 19 Dec 2013 @ 1:34pm

        Re: Re: Letter 44

        I actually like the story so far (it's two issues in). Basically the President got together with his Cabinet and they decided the world needed people with experience in combat just in case, so they finagled a reason to start a 13 year long war in the middle east, to give people that experience.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 19 Dec 2013 @ 3:21pm

          Re: Re: Re: Letter 44

          I understand. It's just that it's such a stupid thing to do that it's unrealistic. It's stupid for two reasons: you're unnecessarily killing off the very people you'd want to fight against the aliens with, and you're not actually training them in a useful way for the battle with the aliens. You're training them to fight other human beings in the middle east. Empires have fallen because they thought that the expertise gained in the last war applies to the next war. Often, it doesn't.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2013 @ 5:01pm

    Perhaps this artice should have been titled "Obama the Hypocrite".

    reply to this | link to this | view in chronology ]

  • icon
    agalvan (profile), 20 Dec 2013 @ 12:35am


    Power corrupts.
    Absolute power corrupts absolutely.

    reply to this | link to this | view in chronology ]

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