With mere days left before President-elect Donald Trump takes the White House, President Barack Obama’s administration just finalized rules to make it easier for the nation’s intelligence agencies to share unfiltered information about innocent people.
New rules issued by the Obama administration under Executive Order 12333 will let the NSA—which collects information under that authority with little oversight, transparency, or concern for privacy—share the raw streams of communications it intercepts directly with agencies including the FBI, the DEA, and the Department of Homeland Security, according to a report today by the New York Times.
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. 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.
As the New York Times put it, with the new rules, the government claims to be “reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.”
Under the new, relaxed rules, there are still conditions that need to be met before the NSA will grant domestic intelligence analysts access to the raw streams of data it collects. And analysts can only search that raw data for information about Americans for foreign intelligence and counterintelligence purposes, not domestic criminal cases.
However—and this is especially troubling—“if analysts stumble across evidence that an American has committed any crime, they will send it to the Justice Department,” the Times wrote. 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.
Barack Obama on mass surveillance
The U.S. presidency of Barack Obama had received widespread criticism due to its support of government surveillance. President Obama had released many statements on mass surveillance as a result.
The Patriot Act
As a senator, Obama condemned the Patriot Act for violating the rights of American citizens. He argued that it allowed government agents to perform extensive and in-depth searches on American citizens without a search warrant. He also argued that it was possible to secure the United States against terrorist attacks while preserving individual liberty. In 2011, Obama signed a four-year renewal of the Patriot Act, specifically provisions allowing roaming wiretaps and government searches of business records. Obama argued that the renewal was needed to protect the United States from terrorist attacks. However, the renewal was criticized by several members of Congress who argued that the provisions did not do enough to curtail excessive searches. Obama also received criticism for his reversal on privacy protection.
Initial reaction to NSA mass surveillance leaks
In June 2013, reports from a cache of top secret documents leaked by ex-NSA contractor Edward Snowden revealed that the U.S. National Security Agency (NSA) and its international partners had created a global system of surveillance that was responsible for the mass collection of information on American and foreign citizens.
Obama initially defended NSA mass surveillance programs when they were first leaked. He argued that NSA surveillance was transparent and claimed that the NSA is unable and had made no attempt to monitor the phone calls and e-mails of American citizens. Following Snowden’s admittance to leaking classified documents regarding national surveillance, Obama attempted to ignore the issue of NSA surveillance. It was speculated that Obama did this to avoid complicating the Department of Justice investigation into Snowden.
In August 2013, Obama argued that his administration was already in the process of reviewing the NSA surveillance programs when they were leaked by Snowden. Obama stated that it would have been best for the American people to have never learned about the programs. He also criticized Snowden for not using existing systems within the federal government for whistleblowers. The latter statement was criticized as Snowden would have been directed to one of the committees responsible for protecting the secrecy of NSA surveillance if he had used the existing whistle-blower system. However, he also promised to make public information about government surveillance and work with Congress to increase public confidence in the government.
January 17, 2014 speech
On January 17, 2014, President Obama gave a public address on mass surveillance.
Reactions During the speech, Obama promised increased restrictions on data collection of American citizens, which would include the requirement of court approval for searches of telephone records. In addition, Obama called for increased oversight and admitted the dangers NSA surveillance posed to civil liberties.
Obama’s speech was criticized for being deliberately vague and not going far enough to protect civil liberties.
Representatives for Google, Facebook and Yahoo stated that Obama’s proposed reforms represented positive progress, but that they did not ultimately do enough to protect privacy rights. A representative for Mozilla noted that mass surveillance had damaged the open Internet and caused balkanization and distrust.
Sen. Rand Paul criticized the remarks, saying:
While I am encouraged the President is addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details. The Fourth Amendment requires an individualized warrant based on probable cause before the government can search phone records and e-mails. President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration. I intend to continue the fight to restore Americans’ rights through my Fourth Amendment Restoration Act and my legal challenge against the NSA. The American people should not expect the fox to guard the hen house.
Dianne Feinstein, a member of the Senate Intelligence Committee, stated that all but two or three of the members of her committee support Obama. Likewise, she criticized “privacy people” for not understanding the threat terrorists pose to the United States. Mike Rogers, the chair of the House Intelligence Committee, praised Obama’s stance on NSA surveillance. Peter King, another member of the House Intelligence Committee, questioned the need for the proposed reform of NSA surveillance, but admitted that they were necessary to calm down the “ACLU types”.
Reactions from global leaders were limited. Great Britain and Russia, both states with extensive surveillance programs, offered no comments. Dilma Rousseff, the current president of Brazil and an outspoken critic of NSA surveillance, also refused to comment. In Germany, a government spokesperson demanded greater protection for non-Americans in reaction to the speech. Der Spiegel accused the NSA of turning the internet into a weapons system.
The European Union stated that Obama’s pledge to reform the phone data collection is a step in the right direction, but demanded that actual laws be passed regarding this reform.
A full point was awarded in each category where Obama fully made the promised reform. However, partial points were awarded for reforms that had not been fully completed, but where the EFF and The Day We Fight Back felt that progress as being made. Obama received praise for adding independent advocates to the Foreign Intelligence Surveillance Act (FISA) courts and opposing the FISA Improvements Act. However, it was also noted that Obama had not made any progress on giving metadata storage responsibility to a third party, ending the undermining of encryption standards, increasing transparency within the NSA and protecting whistleblowers.
Statements to the German people
On January 18, Obama spoke to ZDF in an attempt to improve the United States relations with Germany, which a German foreign office official said were “worse than … the low-point in 2003 during the Iraq War” due to the surveillance leaks. Obama promised that he would not let revelations about mass surveillance damage German-American relations and admitted that it would take a long time for the United States to regain the trust of the German people. However, he maintained that the surveillance was necessary for international security.
German reactions to the speeches given by Obama on January 17 and 18 ranged from skeptical to outright hostility. Members of the German media argued that they were hopeful that Obama would bring about needed reform. However, they also noted that his statements were vague and argued that they did not represent legitimate reform. Many German political leaders responded with outright hostility. Thomas Oppermann, the chairman of the German Social Democrats, demanded a no-spy treaty and stated that American surveillance constituted a crime. The German attorney general argued that there were grounds for a criminal investigation into the NSA’s tapping of Angela Merkel’s cell phone.
Proposed overhaul of NSA phone surveillance programs
On March 25, 2014, Obama promised to end the NSA’s collection and storage of bulk phone-call data. Despite this promise, his administration continued to seek reauthorization of the telephone metadata program.
It is approved every 90 days by the FISC, with the most recent authority set to expire June 1, 2015.
In a plan submitted by the Obama Administration to Congress, the NSA would be required to conduct searches of data at phone companies. They would also need to receive a warrant from a federal judge to conduct the search.
The overhaul proposal received support from the American Civil Liberties Union.
A representative of the organization claimed that it was a crucial first step in reigning in NSA surveillance.
The overhaul was criticized by several officials, however, because it would force telephone carriers to store customers metadata that they previously not legally obligated to keep. Reactions from the carriers were generally positive. A representative of Sprint Corporation stated that the carrier was examining the president’s proposal with great interest.
As of March 2015, the administration’s proposals have not been implemented and the NSA retains the authority to collect and store telephone record metadata.