President Obama last week approved a change in the way the National Security Agency shares raw signals intelligence data with the rest of the U.S. intelligence community, a shift that privacy experts worry will erode the civil liberties of Americans.
An unclassified document released by the Office of the Director of National Intelligence spells out how the NSA, under Executive Order 12333, can share raw data that beforehand was sanitized before it was shared with any of the 16 other IC agencies.
“That’s a huge and troubling shift in the way those intelligence agencies receive information collected by the NSA. Domestic agencies like the FBI are subject to more privacy protections, including warrant requirements,” said Kate Tummarello, a member of the Electronic Frontier Foundation’s Activism Team. “Previously, the NSA shared data with these agencies only after it had screened the data, filtering out unnecessary personal information, including about innocent people whose communications were swept up the NSA’s massive surveillance operations.”
The new rules were signed into effect a little more than a week before the inauguration of President-Elect Donald Trump, who in the past has spoken in favor of expanded surveillance.
The relaxed rules put raw data in the hands more agents, including branches of the military and the Drug Enforcement Administration, and while it’s supposed to be limited to foreign surveillance efforts and national security, privacy advocates worry about domestic communication caught in the same net.
“So information that was collected without a warrant—or indeed any involvement by a court at all—for foreign intelligence purposes with little to no privacy protections, can be accessed raw and unfiltered by domestic law enforcement agencies to prosecute Americans with no involvement in threats to national security,” Tummarello wrote in an analysis published last week.
The rules were approved Jan. 3, by Attorney General Loretta Lynch before they were sent to the White House.
Robert S. Litt, general counsel to outgoing Director of National Intelligence James Clapper disagreed that the new rules expand law enforcement’s ability to use signals intelligence in an investigation.
“It is simply widening the aperture for a larger number of analysts, who will be bound by the existing rules,” he told the Times.
Intelligence agencies will have to apply for access to the raw data and the new rules spell out a number of conditions that must be met. Those include a description of how the data will be used, its value to the particular mission, and why other sources of information are not sufficient. The agency must also determine whether any data is associated with a “U.S. person” and must coordinate with the NSA or other government agencies before using it. The rules also spell out oversight, compliance and audit mechanisms meant to stand in the way of any potential abuses.
Brookings Institute fellow Susan Hennessey said in an interview with The Atlantic that these changes have been eight or nine years in coming and said it was a positive thing that this was resolved before the next administration takes over.
“Under Executive Order 12333 as it previously existed, NSA analysts had to make an initial determination and apply a set of privacy rules before sharing raw signals-intelligence information with other parts of the intelligence community. After this change, it doesn’t necessarily have to be an NSA analyst that makes that determination—that information can be shared with other parts of the intelligence community,” Hennessey said. “So it doesn’t change the substantive rules, it doesn’t change the scope of collection, it doesn’t change the types of protection, it doesn’t change the possible uses; it essentially just broadens the group of people who can apply those protections to the raw intelligence.”
