Datagate: The Obama Administration Confirms Spying

For the first time, the Department of Justice has provided a legal explanation of the government’s wiretapping of U.S. citizens: It needs “to collect a large volume of data in order to employ the analytic tools needed to identify that information.” But the tech giants are concerned about the negative fallout that their collaboration with the government could have.

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Indiscriminate wiretapping of both Americans’ and non-Americans’ telephone and email communication will continue. This is the gist of the document published by the U.S. Department of Justice that clarifies and illustrates the lines that were followed in recent years by the National Security Agency (NSA). With this document, which was discussed on many major American television shows on Sunday, the Obama administration has given a legal justification for its espionage work during the war on terror for the first time. It explains, in legal language that is still very clear, why wiretapping will remain a central part of its counterterrorism strategy.

The 22-page report from the DOJ focuses on Section 215 of the Patriot Act, the anti-terrorism law voted in after Sept. 11 and, in particular, the sentence stating that the U.S. government can collect data that are “relevant to an authorized investigation [of suspected terrorists].” The DOJ says that the term “relevant” has, in this case, a wider sense than what is traditionally attributed to the word. “Relevance,” for the Patriot Act, is “a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.” Outside of the legal language, according to the Obama administration, the huge amount of data collected — including the phone numbers, length and location of phone calls of Americans — is necessary because only from this sea of information is it possible to extract the elements that can be traced to terrorist actions. According to government lawyers, the Patriot Act actually gives the NSA and other U.S. government agencies the right to collect “any tangible things” when there are “reasonable grounds to believe” that they could be “relevant to an authorized investigation.” Any attempt to question this extended interpretation of the term “significant,” says the DOJ, is unacceptable.

Congress has twice authorized the Patriot Act, in 2001 and 2011, and the rules for wiretapping were “unequivocal.” Posted on the weekend, as Barack Obama spoke to the nation and the world explaining his intention to increase transparency and building “greater confidence” in the action of the U.S. government, the 22 pages from the DOJ are likely to remain in the annals as the most complete and definitive document explaining wiretapping and invasion of privacy. Despite Obama’s expressed willingness to improve the balance between “protecting our security and preserving our freedoms,” this administration’s most recent acts seem to be almost exclusively heading in the direction of strengthening security.

For example, new details are emerging on the meeting Obama had this week with the big high-tech companies — including Apple’s Tim Cook, Randall Stephenson of AT&T and Vint Cerf of Google. Presented as a way to advance “national dialogue about how to best protect privacy in a digital era,” the meeting instead seemed to be focused on the concerns of big business after the revelations of the NSA’s spying. Collaborations between Apple, Google or large telephone companies and the U.S. government to spy on millions of people could significantly drop the volume of business for the companies — between $22 and $35 million, according to an analysis from the Technology and Innovation Foundation published this week. Those who refuse to cooperate with the government and do not deliver their customers’ data, as shown in the cases of Lavabit email and Silent Circle, will be forced to close. CEOs and senior executives of the companies in question have since expressed their reservations to Obama, urging that the president’s language of “greater transparency” be adopted in the fight against terrorism. Many activists and human rights groups, however, have already expressed the view that Obama’s openness is mostly rhetoric.

The proof of this came almost immediately. In the last two weeks, the United States has conducted at least eight raids with drones in Yemen. The operations were justified by terrorism alerts. However, the following are still unknown: how many people were killed during the eight raids, what the objectives were and the results achieved in the fight against terrorism. Asked by a journalist during a press conference on transparency for more details on the raid, Obama replied, “I will not have a discussion about operational issues.”