Promises and Compromises

When in the process of trying to win a presidential election, candidates and political parties are known to create a defined list of promises which are guaranteed to be fulfilled upon the nominee’s entry to office. These pledges to the American people can range from political to economic to social topics, and are both the backbone and the driving force of the campaign the individual leads. Like any other United States presidential candidate, former Democratic nominee Barack Obama campaigned a specific list of promises he hoped to carry out into his potential presidency. One of the most profound and ambitious of the bunch was the pledge to restrict warrantless wiretaps. This promise echoed back onto issues that had arisen from national security matters which occurred in the wake of the Wiretap Act of 1968 and the terrorist attacks on 9/11.

Upon Obama’s assumption of the presidency, he continued to push for the matter. However, before we can delve into the direct aspirations held for it, we must first understand why this promise existed to begin with. President Obama was highly critical of the Bush administration’s initial policy on warrantless wiretaps, which in 2001, allowed the National Security Agency to “monitor communications between the United States and foreign countries” without the oversight of the judicial court system in the case that the party involved is believed to be linked to al-Qaeda (Washington Post). Following the heartbreaking events on September 11, 2001, the perceptions and emotions of the American people were drastically changed on the concepts of terrorism and national security. Extra measures were taken to ensure that foreign or domestically-made terroristic threats remained controlled, including adding increased security in airports and buckling down on passenger and luggage screening. Furthermore, the number of tourist visas given to Middle Eastern countries, primarily Pakistan, were greatly reduced in number (Villemez). There was an intensified sensitivity and awareness in regards to the possibility of terrorist attacks to America, which led to former President Bush’s decision to take further action.

As it was mentioned prior, following the events of 9/11, Bush implemented policy that allowed the National Security Agency to, in a sense, eavesdrop on telephone and email communications shared between the United States and foreign nations (Washington Post). In the immediate wake of the attacks on the World Trade Center, legislation was passed that simply made obtaining warrants for wiretapping by the government easier; however, in early 2002, former President Bush passed a secret executive order that gave further authorization to the N.S.A. to perform close surveillance on Americans who communicated with foreign entities. This included the formation of a set list of keywords that, when spoken or typed, were instantly detected and investigated by N.S.A. members, allowing the government to narrow down and identify potential threats to the nation.

While it can be understood the implementation of such precautions were meant to fight a common enemy, it didn’t exactly fall within legal limits. In fact, it directly violated F.I.S.A., or the Foreign Intelligence Surveillance Act, which was very similar to the Wiretap Act of 1968. What both of these acts had in common was a narrowly defined list of measures that included what was permitted to be monitored, how it was to be overseen, and to what extend it would be observed. Furthermore, it also ensured that in the instance an individual had communications intercepted and doing so was accidental, all records would be eliminated and destroyed (DHS). Ultimately, it stated that provided there was reasonable cause a particular individual needed to be investigated for questionable relations with foreign entities, there was federal permission to eavesdrop on any means of communication they engaged in. Bush’s moves to extend the abilities of the N.S.A. to perform warrantless wiretapping was met with a varying degree of critiques and support and was highly disliked by Obama, which brings us back full circle to his campaign.

During the campaign process, Democratic nominee Barack Obama ensured he would “update the Foreign Intelligence Surveillance Act,” which would include providing “greater oversight and accountability to the congressional intelligence committee to prevent future threats to the rule of law” (Greenberg). This was no surprise, as Obama had shown symptoms of such stances since his campaign for the U.S. Senate in 2004. He spoke openly on his dislike of “federal agents poking around our libraries” and strived to achieve an increased control on government surveillance that, in his eyes, directly violated rights and notions of privacy (Breslow). During his time in the Senate, he sponsored a bill that made it more difficult for federal agents to utilize a unique type of subpoena, called a “national security letter, to obtain business records without a court order” (Breslow). During his run for his first term for presidency in 2007, he advocated for government transparency and actions that would lead to the defeat of terrorists without undermining the Constitution, specifically in regards to cease illegal wiretapping on American citizens (Breslow).

However, soon before his victory in the 2008 election, he made a shocking vote in favor of a law that provided immunity to phone companies that participated in the N.S.A.’s wiretapping program (Breslow). It contradicted greatly to his campaign promise, but he emerged victorious regardless. This chain of hypocritical acts continued to carry over into his presidency when he signed an extension which allowed “the government to petition the Foreign Intelligence Surveillance Court to compel businesses such as Verizon to hand over customer records to the government” (Breslow). These questionable acts were somewhat offset by one of his final actions during the last months of his first term. In this move, he extended the F.I.S.A. Amendments Act, which included modifications to “Bush-era surveillance practices” and “put safeguards in place that weren’t there before” (Breslow). This was a huge step back to Obama’s original insight into what he perceived for the future of mass surveillance, and these ambitions carried over into his second term as president. It was during this period in which he took the most zealous efforts to expel policies that infringed upon the freedoms and privacy of U.S. citizens.

In terms of tools and methods that could have been utilized at the time, appealing to the public is one of the first and primary methods by which to make movement towards policy. It was in 2005 that the American public was first made aware of the wiretapping occurring in their day-to-day lives, which stimulated immense backlash, debate, and suspicion of those in power. Even more shocking was the uncovering of AT&T’s cooperation with the illegal surveillance taking place, which, as could be expected, created a great loss of revenue for the company (Electronic Frontier Foundation). As a result, appealing to the people would have been a method to raise awareness on the issue as it could have easily been advertised as a concern for their privacy. Another logical method would have been executive order. The 2014 elections gave the Republicans control of the Senate and Congress, and by Obama issuing an executive order, the N.S.A. would fall under its jurisdiction since it is governed by federal law, the U.S. Constitution, and regulations delivered by the executive branch. Additionally, because the Democrats did not control the other branches of government, Obama’s issuance of an executive order would mean he would surpass Congressional or judicial oversight. Because the opposing party controlled Congress, it would be an understandable measure as one would suspect a Democratic president would receive great opposition when facing a Republican-controlled legislative and judicial branch of government. By the end of his presidency in 2016, he had achieved a compromise with Congress on the matter of warrantless wiretapping.

On June 2, 2015, President Obama and Congress made a joint agreement to change the Foreign Intelligence Surveillance Act and signed the USA Freedom Act (Greenberg). It was overwhelmingly passed in the House of Representatives by a vote of 338-88, and passed in the Senate by a vote of 67-32 (Judiciary Committee). Under this proclamation, civil liberties would be more protected by prohibiting bulk collection of any and “all records under section 215 of the Patriot Act, the F.I.S.A. pen register authority, and national security letter statutes” (Judiciary Committee). The Patriot Act of 2001 was passed in order to improve the U.S. law enforcement’s abilities to both detect and act against terrorism. However, some segments of the act remain controversial, with the primary portions being those that pertain to the allowance of wiretapping on American citizens. This is where the chief area of the compromise between Obama and the other branches come into play.

Furthermore, under the USA Freedom Act, the N.S.A. is required to be “more specific in its request to the Foreign Intelligence Surveillance court to collect information,” thereby ending the practice of “bulk collection of metadata”, or information on the time and duration of a call (Greenberg). In its place, factors such as a name, telephone number, address, communication device, or other similar features must be tied to terrorism. This gave a nod to the privacy of citizens, as it drew attention away from specific words and phrases and instead put a spotlight on those who were a definite concern to the United States’ safety. The Act also instigated better information sharing with the American people and maintained strength in national security. The government still had access to communications shared between the people, but it was more carefully regulated and controlled, and even included the assigning of prison sentences to those who provide support or information to a terrorist organization (Judiciary Committee).

It also inspired peace outreach on foreign and domestic levels by ensuring large groups of a certain race, religion, or culture in America were not targeted by the N.S.A. when wiretapping. Doing so helped safeguard groups of people who would normally be categorized or mislabeled as terroristic simply for their background. Furthermore, a panel of legal experts was hired to evaluate requests and advise the courts as to ensure legal rights are both defended and protected (Judiciary Committee). On top of this, the obligations of various treaties to which the United States is a party were implemented, thereby defending the United States’ maritime activities from nuclear threats (Judiciary Committee). Because America is reliant on commerce and trade, it is imperative to maintain healthy terms with those in which the nation is allied with. As a result, the implementation of such treaties assisted in garnering and sustaining coalitions, and ensured that the country preserved its partnerships. All in all, it created a balance between weighing the rights and safeties of the American people, while also maintaining allegiance to foreign nations.

The Act had an overwhelmingly positive reaction from the public, primarily from advocacy groups and many in the tech industry. After marking an entire decade since the public was made aware of warrantless wiretapping, it provided a newfound level of reassurance and faith in the government to resolve issues they had created, while also ensuring that safety was kept in high regard without the sacrificing of civil rights and liberties (Sumagaysay). The tech industries were enthralled at the idea of restoring lost economic growth, as companies such as AT&T and Verizon saw a dip in revenue following the public’s discovery that they were assisting the government in its wiretapping. However, some responses were not so enthusiastic, with another division of the public pointing out the possibilities of the Executive branch interpreting mass surveillance in ways that weren’t always in the best interests of the American people. Many saw the Act as more of a stepping stone, as it was a step into the direction of mending the damages done by the Bush administration following 9/11, but was not enough to restore full faith in the government or some of the tech industries that had become entangled into the doings of the N.S.A. from 2001-2005 (Sumagaysay). It was a complex, economical, and social framework of opinions that offered both praise and raised eyebrows from citizens.

Ultimately, President Obama’s campaign promise to restrict warrantless wiretapping ended in a compromise. It was a goal that was well intentioned and popular with the mass public opinion, but it was a feat he could not conquer on his own. By the collaboration of the three branches, the decision to pass the USA Freedom Act ended in a shared perseverance to defend the United States from foreign terrorist threats, but not at the full expense of the American people’s privacy.

Works Cited

Breslow, Jason M. “Obama on Mass Government Surveillance, Then and Now.” PBS, Public Broadcasting Service, www.pbs.org/wgbh/frontline/article/obama-on-mass-government-surveillance-then-and-now/.

DHS/Office for Civil Rights and Civil Liberties. “The Foreign Intelligence Surveillance Act of 1978.” USA PATRIOT Act, it.ojp.gov/PrivacyLiberty/authorities/statutes/1286.

Electronic Frontier Foundation. “NSA Spying.” Electronic Frontier Foundation, www.eff.org/nsa-spying.

Greenberg , Jon. “Updated - The Obameter: Restrict Warrantless Wiretaps.” @Politifact, www.politifact.com/truth-o-meter/promises/obameter/promise/180/end-warrantless-wiretaps/.

Judiciary Committee. “USA Freedom Act Archives.” House Judiciary Committee, judiciary.house.gov/issue/usa-freedom-act/.

Post, Washington. “Bush Administration's Warrantless Wiretapping Program.” The Washington Post, WP Company, 12 Feb. 2008, www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500999.html.

Sumagaysay, Levi. “Tech Reaction to Passage of USA Freedom Act.” SiliconBeat, SiliconBeat, 3 June 2015, www.siliconbeat.com/2015/06/03/tech-reaction-to-passage-of-usa-freedom-act/.

Villemez, Jason. “9/11 To Now: Ways We Have Changed.” PBS, Public Broadcasting Service, 14 Sept. 2011, www.pbs.org/newshour/world/911-to-now-ways-we-have-changed.