Modern field guide to security and privacy

Opinion: Obama's surveillance legacy

Just two days after his Jan. 10 farewell speech, the Obama administration granted sweeping surveillance powers to the incoming Trump presidency – dramatically expanding 17 government agencies legal authority to spy on US citizens. 

Jonathan Ernst
President Barack Obama departs the lectern after concluding his farewell address in Chicago, Illinois.

In his farewell address earlier this month, outgoing President Obama warned that US citizens “must guard against a weakening of the values that make us who we are.” And digital privacy advocates such as myself welcomed his call to “reform our laws governing surveillance to protect privacy and civil liberties.”

Yet Mr. Obama’s most enduring legacy may be the establishment of the modern US surveillance state. During his eight years in office, Obama has dramatically expanded the reach of US government surveillance, with scores of new revelations of previously unknown surveillance initiatives continuing to regularly come to light.

Just two days after his Jan. 10 farewell speech, The New York Times reported that the Obama administration had granted sweeping surveillance powers to the incoming Trump presidency – dramatically expanding 17 government agencies legal authority to spy on US citizens.

This schizophrenia between rhetoric and action has plagued the Obama administration, but in this case, also directly undermines the very values the exiting president has called upon the nation to so vociferously support.

Obama’s surveillance expansion was accomplished not with legislation but though the power of the president to issue new, or, in this case, updated, executive orders. Specifically, Obama added to the order former President Ronald Reagan first created in December 1981 – Executive Order 12333.

This cold war relic had a singular goal, to “provide the president and the National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats.” Obama has updated the original intent and expanded its scope – just as former President George W. Bush did in 2004 and 2008.

Obama’s administration has reinterpreted “foreign security threats” to also mean “domestic security threats” and increased the number of agencies that have access to the National Security Agency’s (NSA) surveillance data. With the CIA, FBI, Drug Enforcement Agency, Treasury Department/IRS, Homeland Security, Coast Guard, and “such other elements of any department or agency as may be designated by the president” now able to get this data, there’s really no meaningful limit to how widely information might be shared nor who might be targeted.

These changes will dramatically increase the impact of spying on everyday Americans. Many more government agencies will have access to your most private emails, phone calls, text messages, social media posts, and a host of other information; and compartmentalization of sensitive information will be irreparably diminished.

The power of these tools is far greater than should be in the hands of any president, regardless of political affiliation. However, whatever your concerns are about data in the hands of the government – and the concomitant development of registries targeting everyone from Muslims and immigrants to gun owners – this threat to democracy is compounded by the complete lack of transparency.

Under the veil of “national security,” these programs are largely hidden from the American people. As we celebrate Martin Luther King this month, we should remember the lessons of COINTELPRO – the secret surveillance program that labeled Martin Luther King a terrorist and sought to discredit this civil rights leader and drive him to suicide.

Obama has rightfully pointed out the stakes in America’s ongoing battles against terrorist threats. The Islamic State, he said, “cannot defeat America unless we betray our Constitution and our principles in the fight.”

But simultaneously gutting the Fourth Amendment of the Constitution seems particularly self-defeating. The Fourth Amendment is unequivocal in its intent to protect people’s right to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures.” And as a constitutional scholar, Obama already knows that the Fourth Amendment explicitly requires law enforcement to get a warrant prior to invading an individual’s privacy.

By using the power of the executive branch to enable warrantless surveillance of millions upon millions of Americans, Obama is not protecting the core values of our country, he is undermining them.

For many Americans, their first brush with these new powers Obama has bestowed upon law enforcement will likely  be its application – almost always wrongfully – in rounding up innocent civilians incorrectly identified as terrorists or criminals. Put simply, when you search through a vast quantity of data (e.g. the NSA’s surveillance data) for an incredibly rare phenomenon (e.g. a terrorist), the number of false positives – the number of innocent people incorrectly flagged as suspects – skyrockets.

A few commentators (especially those formerly employed by the NSA and the agencies and companies who have profited from over-exuberant surveillance) have continued to defend Obama’s expansion of surveillance efforts, often via statements that are, at best, misleading.

Susan Hennessey, a Brookings fellow and former attorney in the NSA general counsel’s office, even went so far as to claim recently in the Atlantic that “the FBI could not obtain access to or search raw intelligence information for ordinary criminals in an ordinary criminal investigation against a US person” even while that is, sadly, exactly what has already been happening.

Likewise, her claim that “minimization procedures [to protect innocent Americans from warrantless surveillance] are taken very seriously,” stands in marked opposition to the NSA’s own internal audit documented thousands of violations yearly. These documented and ongoing abuses simply lend further credence to the impossibility of creating mass surveillance without their inevitably abuse (and subsequent denial of those abuses).

This is a recipe for further division, alienation, and resentment on a national scale – not unity.

There has been some progress on this front. Organizations, individuals, and politicians from across the political spectrum have been quietly forging common ground on the importance of civil liberty for the future of our country.

Fundamentally, though, one cannot build solidarity without trust, and Obama’s unprecedented regime of snooping and spying has pitted Americans against Americans for far too long.

Since 9/11, powerful forces have mistaken bravery for naivete while instituting practices that are craven, not courageous.

While the current overtly partisan rush to vilify or beautify both Presidents Obama and Trump will most certainly continue, we cannot overlook that Obama’s actions undermining civil liberty are now a part of the historical record, while President Trump’s intentions remain largely unknown.

In the hands of any political faction, these over-arching surveillance programs are guaranteed to be abused – as they have been, thousands of times of times a year.

Thus, it falls to President-elect Trump to restore our essential liberty and rule of law: to fix what Obama has broken; to “cultivate peace” and walk us back from wars and military actions both numerous and secretive; and to become a champion, not for one faction or the other, but for the fundamental freedoms and liberty that define American Democracy and unify constituencies from across the political spectrum.

Sascha Meinrath is director of X-Lab, an innovative venture focusing on thought-provoking, bold tech policy interventions, and the Palmer Chair in Telecommunications at Penn State University.

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