Why Is Obama Expanding Surveillance Powers Right Before He Leaves Office?
With the new changes, which were long in the works, those agencies can apply for access to various feeds of raw, undoctored NSA intelligence. Analysts will then be able to sift through the contents of those feeds as they see fit, before implementing required privacy protections. Previously, the NSA applied those privacy protections itself, before forwarding select pieces of information to agencies that might need to see them.The updated procedures will multiply the number of intelligence analysts who have access to NSA surveillance, which is captured in large quantities and often isn’t subject to warrant requirements. The changes rankled privacy advocates, who oppose a broadening of surveillance powers—especially on the cusp of Donald Trump’s inauguration. Trump and Mike Pompeo, the president-elect’s nominee for CIA director, have made it clear that they think overzealous civil-liberties protections should be cleared away in favor of stronger surveillance laws.
I spoke with Hennessey, who was previously an attorney in the NSA general counsel’s office, about the lasting effects of the new intelligence-sharing procedures. A transcript of our conversation follows, lightly edited for clarity and concision.
Kaveh Waddell:
First off, what do these changes mean for the intelligence community?
Has a lack of information-sharing among agencies been holding back
investigations?
Susan Hennessey: The
origin of these changes dates back, honestly, to just after 9/11. There
was this identified issue of “stovepiping”: Intelligence wasn’t being
shared frequently or fast enough. Some modifications have already been
made throughout the years.
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.
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.
Waddell: And by extension, it broadens the group of people who get to see raw intelligence, before those rules are applied?
Hennessey:
Yes. This is something that has been at the forefront of privacy and
civil-liberties advocates’ minds when they’ve expressed concern with
this type of collection. But it’s not accurate to say the rule change
means it’s a raw signals-intelligence free-for-all, that anybody can get
signals intelligence.
Intelligence
agencies other than the NSA will have to provide justification for why
they need access to that data. It can only be for foreign intelligence,
or other enumerated purposes. So it’s not that those agencies will just
be able to see whatever they want—it’s that they will be able to
request, with particular justifications, access to more raw signals
intelligence than they had before. Then, they will need to apply those
minimization procedures for themselves.
The
civil-liberties concern often surrounds the use of incidentally
collected information. Under the new rule, the FBI could not obtain
access to or search raw intelligence information for ordinary criminals
in an ordinary criminal investigation against a U.S. person. However, if
the FBI incidentally seized evidence of a crime, they are allowed to
use that information. So that tends to be where the tension is for
people who are concerned with the potential impacts that this change
could have on U.S. persons.
Waddell:
The fact that more Americans could potentially be subject to
warrantless searches, just by virtue of being caught up in the raw
signals intelligence that’s shared—is that something that concerns you?
Hennessey:
No. Look, I think it’s important to understand that these minimization
procedures are taken very seriously, and all other agencies that are
handling raw signals intelligence are essentially going to have to
import these very complex oversight and compliance mechanisms that
currently exist at the NSA.
Within the NSA, those are
extremely strong and protective mechanisms. I think people should feel
reassured that the rules cannot be violated—certainly not without it
coming to the attention of oversight and compliance bodies. I am
confident that all of the agencies in the U.S. intelligence community
will discharge those very same obligations with the same level of
diligence and rigor, adhering to both the spirit and the letter of the
law.
That said, there are potentially broader reforms
that might be undertaken. I don’t think that they necessarily need to be
linked to the sharing of data. But it’s reasonable to at least engage
in a conversation about whether or not it’s appropriate to have
particular post-collection reforms, like for example imposing an
obligation for law enforcement to obtain a warrant in particular
circumstances.
That’s
a long way of saying that nothing about this particular rule change
exposing Americans to additional privacy risks. However, that doesn’t
mean that there are not still reasonable and responsible reforms which
might take place.
Waddell: I found it interesting that you said the change could, in one way, actually be viewed as a “huge source of comfort.” I think you were referring to the timing of the change. Why is that?
Hennessey:
These changes have actually been in process for eight or nine years.
One of the things that I think individuals who had insight into
intelligence activities and were concerned about the election of Donald
Trump—specifically, some of the statements he’s made about adherence to
the rule of law—a lot of those people’s minds went very quickly to these
procedures.
It’s important to understand the
distinction between Executive Order 12333 and the Foreign Intelligence
Surveillance Act: One very oversimplified way to think about it is that
FISA is a statute that governs collection that takes place within the
United States, but that is aimed at a foreign target; 12333 collection
is aimed at a foreign target, and takes place outside the United States.
That’s shorthand that glosses over some technical and legal nuance, but
those are the broad buckets people should be thinking about.
FISA
is a statute, so you’d need congressional action to change those rules,
and you have a built-in check there. But 12333 is not constrained by
statute; it’s constrained by executive order. In theory, a president
could change an executive order—that’s within his constitutional power.
It’s not as easy as just a pen stroke, but it’s theoretically possible.
Executive
Order 12333 requires that this series of protective procedures exist
and are adhered to. The procedures are kind of where the rubber meets
the road on privacy. They’re the details, the nitty-gritty: What can you
actually see? What can you share? What do you have to minimize? So
they’re really, really important in terms of what the relationship
between U.S. citizens and the intelligence community looks like.
When
they were in rewrites, they were sort of vulnerable. There was the
possibility that an incoming administration would say, “Hey! While
you’re in the process of rewriting, let’s go ahead and adjust some of
the domestic protections.” And I think a reasonable observer might
assume that while the protections the Obama administration was
interested in putting into place increased privacy protections—or at the
very least did not reduce them—that the incoming administration has
indicated that they are less inclined to be less protective of privacy
and civil liberties. So I think it is a good sign that these procedures
have been finalized, in part because it’s so hard to change procedures
once they’re finalized.
Waddell: Is that why we just went through an eight- or nine-year process to get here?
Hennessey:
Exactly. For questions both of genuine complexity and just government
bureaucracy, the time horizon here is longer than a single term of the
presidency.
So I don’t think that it’s necessarily true
that the intelligence community or the Department of Justice was rushing
to get these procedures passed; if anything, they’re a little bit late.
But I think the bottom line is that it’s comforting to a large
national-security community that these are procedures that are signed
off by Director of National Intelligence James Clapper and Attorney
General Loretta Lynch, and not by the DNI and attorney general that will
ultimately be confirmed under the Trump Administration.
Waddell: Is there anything else we should be thinking about with these new changes?
Hennessey:
People sometimes focus on the top-line stuff and end up missing the
things that aren’t necessarily the symbolic expressions of privacy—the
things that make us feel good—but are the functional elements of privacy
and civil liberties. What rules do people apply day-to-day and how?
There’s going to be a need moving forward to have disciplined
conversations about the legal protections that really matter.
If
there is a silver lining to some of the anxieties that the incoming
administration has produced, I think it’s the potential to move the
conversation into a much more productive place. But that opportunity
will end up being lost if the responses are the same old same. That’s my
last shred of optimism, and I’m hanging on to it.
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