Is Barack Obama like Richard Nixon?
Until recently that pairing seemed odd. Obama and Nixon are leaders from different generations, leading different parties with distinctly different styles.
Yet both used excessive force to crack down on whistleblowers and journalists. And while their tactics have differed, the goal was the same: to silence and criminalize those who expose government wrongdoing.
Obama, however, may have learned from his predecessor's mistakes. While Nixon broke the law to attack dissenting voices, Obama has distorted it to the same effect.
And he's taken his powers much, much further -- misinterpreting outdated or poorly written laws to claim his administration's authority to spy on almost anyone who uses modern technology to communicate.
Without a fix to this legislation, the potential to abuse our most basic privacy and free speech rights is far greater under Obama's administration than under any that came before it.
Faced with the release of the Pentagon Papers in 1971, President Nixon secretly deployed a team of burglars -- the "plumbers" -- in an attempt to smear former U.S. military analyst Daniel Ellsberg, who leaked the documents to news sources. They broke into the offices of Ellsberg's psychoanalyst and pored over his files for defamatory evidence they could hand the media.
Obama's Justice Department placed Associated Press and Fox News reporters under surveillance after they received classified information from confidential government sources. His administration cited the 1917 Espionage Act as legal standing to prosecute seven whistleblowers. Before Obama took office, federal prosecutors had used this World War I-era law in only three cases, including Nixon's failed prosecution of Ellsberg.
But Obama's prosecutors have added other tools to their arsenal. They've relied on the outdated Computer Fraud and Abuse Act (CFAA) to target anyone who accesses a computer "without authorization" or in a way that "exceeds authorized access."
This fuzzy legislation was passed in 1986, before the Internet was in popular use. By today's technological standards, the CFAA is meaningless. But that hasn't stopped U.S. prosecutors from using it in pursuit of harsh criminal penalties against Internet users who try to access sensitive information and share it more broadly. (Federal prosecutors used the CFAA in their zealous pursuit of open Internet champion Aaron Swartz, who committed suicide in January.)
"The government has shown itself unable to restrain its use of power. So far, government discretion has repeatedly failed to curb abuse and, in fact, has resulted in abuse itself," wrote Rep. Zoe Lofgren and Sen. Ron Wyden. The two support new legislation to update the Act in ways that would limit prosecutorial power to target leakers and hackers who otherwise have caused little to no harm.
But Congress shouldn't limit theses fixes to the CFAA. The administration reads Section 215 of the PATRIOT Act as giving its intelligence agencies broad discretion to obtain "any tangible thing" it deems relevant to an investigation. Obama's intelligence apparatus has interpreted this language -- alongside additional powers granted under the FISA Amendments Act -- to mean it can vacuum up the phone and Internet logs of ordinary people who are in no way connected to criminal acts.
The American Civil Liberties Union has challenged this notion and is suing the Obama administration for violating the Fourth Amendment -- which protects Americans against search and seizure of property without warrant or probable cause. The ACLU also claims the administration's interpretation of Section 215 is "likely to have a chilling effect on whistleblowers" and others who seek to expose official wrongdoing.
The vagueness of these laws, especially when applied in our age of digital communications and information sharing, has allowed the Obama administration to circumvent our most basic constitutional rights.
And this abuse will continue unless Congress aligns the language of the Espionage Act, the CFAA, the PATRIOT Act and the FISA Amendments Act with the First and Fourth Amendments.
So far, the leadership in both chambers has closed rank with the intelligence community to support sweeping government powers with little restraint or accountability.
Instead they should be repairing a legal system that gives this and future administrations too much leeway to criminalize speech and invade our privacy.