Today's Washington Post announces yet another assault on personal privacy being attempted by the Obama Administration. In "White House proposal would ease FBI access to records of Internet activity," Ellen Nakashima reports:
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
In an apparent application of PATRIOT Act principles, the FBI is seeking the unimpeded right to request these records without public notice of any type, without a warrant, and ironically, without it being required to keep a record of the FBI's request. In fact, the victim of such a request would be required to keep it secret, just as librarians at one time were required to keep secret FBI requests for patrons' reading habits, also under the PATRIOT Act. According to Nakashima,
...So-called national security letters... which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
This proposed policy is a vast increase of the US Government's investigative and coercive powers. It rides roughshod over the Electronic Communications Records Act, an historic 1986 declaration that email is a protected form of speech the same as speaking on the phone and thus a warrant is required for its seizure. The new initiative also directly contradicts federal and state laws on cable, telephone, and Internet privacy, like the Congressionally passed Cable Television Privacy Act and California's Telephone Privacy Act, each of which prohibits gathering of customers' records without a court warrant.
No one should be surprised. As a candidate in late 2008, Obama failed in the Senate to strongly oppose legal immunity for AT&T and Verizon, companies that collaborated with the NSA during the Bush years. These companies had ruthlessly wiretapped and collected records of tens of millions of American's phone calls and Internet communications, then handed the results over to the NSA, thus violating the ECRA and federal and state wiretapping statutes. With Bush Administration help, AT&T and Verizon lobbied for and got the Democratic Congress to extend to them immunity from prosecution and civil suits. Obama, who had spoken against such immunity, quietly slipped into the wings rather than opposing the vote with a hold.
Today, such reversals of policy are common to Obama. Most recently, regarding the wars in Iraq and Afghanistan, he has morphed from dove to hawk, channeling the spirit of LBJ. But his refusal to oppose telecom immunity when he had made such a big deal about it earlier in the campaign was a shocking blow to his political base, one from which the President has never recovered.
Obama's position has stiffened further since he became President. It was Attorney General Holder, not one of Bush's cronies, who argued to dismiss Electronic Frontier Foundation and ACLU lawsuits to revoke telecoms' immunity. As part of its argument, the Justice Department tried to invoke the "state secrets" clause to avoid sharing evidence with the plaintiffs. Fortunately, presiding Judge Vaughn Walker resisted this ploy. Had he not, the transformation of America into an authoritarian state unanswerable to its citizens on key matters would have taken another step -- a "change you can count on" that Obama's supporters probably did not anticipate. Nevertheless, the Justice Department eventually prevailed and the telecoms' immunity was deemed secure.
Reaction to the proposed FBI policy change was predictably negative. According to Washington Post reporter Nakashima,
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
Sadly, it's impossible for Obama's dwindling defenders to name one case in which the president has stood for greater personal privacy and technologically enhanced freedom to speak. Instead, the same President who is so strongly in favor of government using the Internet to communicate with its citizens appears ready to impede the citizens using the Internet to communicate with one another, freely and without fear of Big Brother muscling in.
The late Bert Gross, a professor at Hunter College, former federal bureaucrat, and political commentator earlier warned of the emergence in America of "friendly fascism": fascism with a smile, the happy reorganization of society in the form of the state because it feels good. Perhaps to this brainy president, government omniscience feels good.
The case can be made that the more the government knows, the better the government can ensure that the laws are upheld. One immediately thinks of external enemies to the state -- in common parlance, "terrorists!" But what if the government itself is controlled by elements that are antithetical to the commonweal, like big banks, private hedge funds, the oil industry, the military-industrial complex, Big Medicine, and others whose agendas terrorize Americans from within? What then is the snooping for and whom will it serve? Not the Constitution.
No one except the snoopers calls for these frightening policy changes. They do nothing to further public safety. All they do is feed the paranoia of the Tea Party and less radical libertarians regarding the US Government's intentions, that it's out to get us, to keep us in line. Or is it paranoia, if they're really coming after you?
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