On the campaign trail, candidate Barack Obama decried the privacy invasions of the Bush surveillance program in 2007, saying it put “forward a false choice between the liberties we cherish and the security we provide.” Though these comments referred to different (and, often, illegal) programs than the ones now being widely discussed, we now know that surveillance programs started under the Bush administration have been extensively expanded during his presidency.
First, The Guardian exposed the tip of the iceberg, releasing a Foreign Intelligence Surveillance Court (FISC) order compelling Verizon to turn over metadata on nearly all calls, such as phone numbers, time stamps, and cell site location data. It was later revealed that this was a continuation of a seven year program involving all major telecommunications companies. This program would have been significantly curtailed, however, if a younger Obama’s attempt to limit such surveillance had succeeded. In 2005, then-Senator Obama co-sponsored the SAFE Act, which would have would drastically limited this sort of dragnet surveillance by amending the USA PATRIOT Act to require intelligence agencies show “specific and articulable facts” that a target was an “agent of a foreign power” before accessing phone records.
Soon after news of the Verizon order leaked, more details about the broad scope of American surveillance programs came out. On Thursday, The Guardian and the Washington Post revealed two programs, codenamed PRISM and BLARNEY with broad online surveillance implications — PRISM deals with the content of foreigners’ online communication (but with a very low threshold of proof that likely resulted in many American citizens’ privacy being “incidentally” compromised); BLARNEY appears to involve a broad collection of digital metadata. While tech companies have denied direct access to their servers or to their data as compelled by the law and the Post has since backtracked on that aspect of their report, that doesn’t rule out the NSA obtaining copies of that data. Subsequent coverage by the Wall Street Journal suggests the government also has access to credit card and Internet service provider (ISP) data.
But while revelations about both programs produced outrage, a White House spokesman told reporters aboard Air Force One Thursday before the PRISM story broke that the phone log data collection was a “critical tool in protecting the nation from terror threats” and that “[t]he president welcomes a discussion of the trade-offs between security and civil liberties.”
Unlike the warrantless wiretapping programs of the Bush administration, the Obama administration asserts PRISM is legal under section 702 of the Foreign Intelligence Surveillance Act (FISA). That section stemmed from the Protect America Act (PAA), signed by President Bush in 2007, which many at the time warned could end up being used to implement broad surveillance programs with “no meaningful judicial oversight.”
A statement from the Director of National Intelligence James Clapper declassifying some details of the phone data collection program released late last night decried the leaks that exposed the surveillance programs as threatening to do “potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.”
President Obama’s transition from a Senator and presidential candidate who objected to the specter of a surveillance state existing outside of the law (either on ideological grounds or to score political points) to a president who embraced the the expansion of of similar programs after they gained a cloak of legal legitimacy is perhaps unsurprising: The power and access to intelligence information that comes with the position can change perspectives. But the pre-presidential Obama seemed to understand the way an overaggressive surveillance state can transform society.