Civil Liberties  
comments_image Comments

Hypocrite in Chief? 5 Limits on NSA Spying that Senator Obama Supported But President Obama Opposes

What a difference 5 years makes.
 
 
Share

Sen. Barack Obama
Photo Credit: spirit of america/Shutterstock.com

 
 
 
 

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.

1. 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 amendmentthat 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.

2. 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.