Obama’s Surveillance State

According to civil liberties watchdogs, the Obama adminstration has already staked out claims of executive power which exceed that of the Bush adminstration.

To follow up on my recent posting, "Obama's Surveillance State Targets PCs, Laptops and Media Devices," Computerworld reported on March 15th, in "Obama administration says treaty text is state secret:"

The Office of U.S. Trade Representative (USTR), part of President Barack Obama's office, has denied a company's request for information about a secretive anticounterfeiting trade agreement being negotiated, citing national security concerns . . .

The USTR under Obama seems to be taking the same position about the Anti-Counterfeiting Trade Agreement (ACTA), which New Zealand and a number of other countries are negotiating, as it did under former President George Bush, that the treaty documents are not open to the public. One of Obama's campaign promises was to make government more open and responsive to the public.

USTR continues to deny access to the key ACTA documents. As IT World reported on March 24th, transparency has yet to be seen and "national security" continues to be the rationale given, with the only change being promise of a "long-term review" of the matter.

USTR officials confirmed Tuesday that the agency, part of the White House office of President Barack Obama, will begin a long-term review of its transparency, including "how the agency acquires information from the public and transmits information to the public," said USTR spokeswoman Debbie Mesloh.

The pledge to review transparency comes after three groups, Knowledge Ecology International (KEI), Public Knowledge and the Electronic Frontier Foundation (EFF), filed Freedom of Information Act requests seeking details about the Anti-Counterfeiting Trade Agreement (ACTA), a trade pact being negotiated among the U.S. and several other countries.

USTR has denied those information requests, telling KEI that the antipiracy pact is "properly classified in the interest of national security."

Consumer groups and KEI have complained that ACTA is being negotiated in secret and could have a significant impact on how intellectual-property laws are enforced in the U.S.

Computerworld reports that in a joint statement just released by ACTA that secrecy remains in full force:

"It is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation," says the statement. "This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues."

Moreover, as Computerworld further notes in quoting the ACTA statement, the fears remain justified that the treaty will allow governments to have sweeping access to anyone's PC, laptop and other electronic devices in order to make copies of any files:

[T]he statement mentions an effort to arrive at consistent provisions covering "the authority of the judicial authorities to order injunctions which require that a party desist from an infringement" and "provisional measures, such as the authority for judicial authorities or other competent authorities to order, in some circumstances, the seizure of goods, materials or documentary evidence without necessarily hearing both parties."

But, what about Obama's January 21st executive order on "transparency" in which he claimed:

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

For the Obama White House to be really transparent, could the terms "fog" or "smokescreen" or "deceit" better apply? This obfuscation by the Obama administration regarding privacy and civil liberties is fully consistent with their support for government secrecy and immunity via the "State Secrets Privilege" regarding the continuation of wiretapping, renditioning, and other provisions of the USA Patriot Act. According to Bob Egelko in the San Francisco Chronicle:

The Obama administration is again invoking government secrecy in defending the Bush administration's wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

And this from Glenn Greenwald at Salon.com on April 6th regarding the warrantless eavesdropping program involving telecoms and the federal government:

But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit, the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope — never before advanced even by the Bush administration — that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In his article, Greenwald reproduces the actual DOJ brief insisting upon the Obama administration's claims of absolute executive power and secrecy rights because doing otherwise "would cause exceptionally grave harm to national security."

Republished with permission from the Independent Institute.