In his final few days in office, President Barack Obama has overseen a measure that dramatically expands the power of the National Security Agency (NSA) to share intercepted data with other intelligence agencies.
The new rules put into place by President Obama permit the sharing of data the NSA gathers on private citizens with a number of other intelligence and law enforcement agencies, all before applying the legally required privacy protections or obtaining a warrant. In order to be intercepted legally, communications such as phone calls and emails must cross network switches abroad, so any digital interactions you have with people outside of the United States, or even domestic communications that travel across international switches, are already susceptible to legal NSA surveillance, but now the data gathered can be shared more freely within the law enforcement community.
The intent behind these new measures is to provide a larger base of law enforcement and intelligence officials that can sift through the tremendous amounts of data collected by the NSA, thus reducing the chances that a threat is overlooked by existing NSA methodology. Privacy concerns raised by critics point out that this also dramatically increases the likelihood that government officials will be sifting through the personal communications of innocent Americans.
“Rather than dramatically expanding government access to so much personal data, we need much stronger rules to protect the privacy of Americans,” said Patrick Toomey, a lawyer for the American Civil Liberties Union. “Seventeen different government agencies shouldn’t be rooting through Americans’ emails with family members, friends, and colleagues, all without ever obtaining a warrant.”
He went on to add that domestic internet data is often routed through external stations or stored abroad, which means many Americans who have had no communications outside the borders of the United States are still having their private data collected by the federal government.
Agencies will need to request access to specific data and surveillance feeds from the NSA by making a case that the feeds contain useful or relevant information for ongoing investigations. The NSA will then grant access to requests they deem reasonable. The NSA has stated that it will assess these requests based on considerations such as whether large amounts of Americans’ private information will be exposed to other agencies’ officials in the effort, as well as how embarrassing that data could be to said Americans if it were “improperly used or disclosed.”
Despite concerns about privacy violations, some see this move as a dramatic improvement over the bureaucratic barriers that have hindered intelligence and law enforcement agencies operating within the United States in the past.
“This is not expanding the substantive ability of law enforcement to get access to signals intelligence,” said Robert S. Litt, the general counsel to the director of national intelligence, James R. Clapper Jr. “It is simply widening the aperture for a larger number of analysts, who will be bound by the existing rules.”
But it’s that very “widened aperture” that has many privacy advocates so concerned, especially in the face of Donald Trump’s January 20th inauguration, wherein Obama will pass off control of the federal government to the dark horse Republican candidate.
“The fact that they’re relaxing these privacy-protective rules just as Trump is taking the reins of the surveillance state is inexplicable to me,” says Nate Cardozo, an attorney with the Electronic Frontier Foundation. “The changes they’re making today are widening the aperture for abuse to happen just as abuses are becoming more likely.”
However, even Cardozo can acknowledge the potential benefits this new policy could have for law enforcement. “It used to be that if the NSA itself saw the evidence of a crime, they could give a tip to the FBI, and the FBI would engage in parallel construction,” says Cardozo. “Now the FBI will be able to get into the raw data themselves and do what they will with it.”
“Parallel construction” is the term used to describe law enforcement agencies secretly using NSA surveillance to identify and track a criminal, then assembling or even fabricating a plausible trail of evidence that brought them to the same conclusion in order to avoid implicating NSA intelligence in their investigation. The practice was the subject of a 2012 ACLU lawsuit against the Office of the Director of National Intelligence. As a result of the lawsuit, the Justice Department acknowledged that the technique had been repeatedly used in the recent past to hide the NSA’s involvement in criminal investigations.
Despite concerns about the violation of American citizens’ privacy, the Justice Department under President Obama signed off on the new NSA regulations over the past few weeks. Director of National Intelligence James Clapper and Attorney General Loretta Lynch both penned their final approvals after President-elect Trump won the election.
Robert Lint defended the adoption of these new policies in a recent blog post, but claimed they were not intended for law enforcement specifically. “These procedures are not about law enforcement, but about improving our intelligence capabilities,” Litt wrote. “There will be no greater access to signals intelligence information for law enforcement purposes than there is today.”
It would seem that, regardless of the skeptics, the American surveillance machine will continue to grow and accumulate private information on American citizens as well as citizens around the world. Whether or not the exchange of privacy for the potential for improved security will result in a safer world for America and her allies, however, has yet to be seen.
Image courtesy of Reuters
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