The Obama administration Tuesday announced small changes in how it collects and stores bulk U.S. and foreign surveillance data, a move that arrives a year after the president pledged to reform the National Security Agency’s controversial spying regime.
Under orders outlined in a new report, intelligence analysts will be required to immediately delete some private communications data of Americans that are collected “incidentally” during foreign surveillance sweeps—as long as that information is deemed unnecessary to keep for security purposes. Similar data collected about foreigners will also be destroyed, but within five years.
Additionally, the administration will begin allowing secretive national security letters, which are used to compel companies to hand over communications data or financial records of certain users for the purposes of a national security investigation, to be disclosed publicly after three years. Several tech companies have long complained about the tight gag orders that prevent disclosure of the amount of national security letters received from the government.
The release of the report from the Office of the Director of National Intelligence marks one of the Obama administration’s most serious attempts to demonstrate efforts it has made to reform its surveillance operations since Edward Snowden’s disclosures began more than a year and a half ago. Most of the report essentially serves as a status update focusing on progress made under a presidential policy directive declared by Obama last January, when the administration was besieged by a seemingly endless deluge of leaks and was desperate to restore confidence in the intelligence community.
But the new report is likely to do little to appease privacy advocates, who are still waiting for Obama to end the NSA’s bulk collection of U.S. telephone records. Obama said a year ago he would move forward to end the controversial dragnet program only after lawmakers sent him a bill suitable to his specifications, but so far Congress has failed to do that. The USA Freedom Act fell to a Republican filibuster in the Senate in November, though lawmakers in both chambers have vowed to revive the bill this year.
Congress needs to act in some fashion before core provisions of the post-9/11 Patriot Act expire on June 1, however. Section 215 of that law provides the NSA with its legal authority for the mass surveillance of U.S. metadata, but it remains unclear how willing Senate Majority Leader Mitch McConnell and his fellow Republicans are to compromise on intelligence matters. The rise of extremist terrorists in the Middle East and the recent spate of violence in France has further troubled national security hawks, such as Sen. Marco Rubio of Florida, who last week called for a permanent extension of the NSA’s mass surveillance powers.
Tuesday’s report reaffirmed the administration’s support for the USA Freedom Act, noting that “we continue to call on Congress to reform Section 215 in a manner consistent with the president’s proposal.”
Robert Litt, general counsel at the Office of the Director of National Intelligence, told reporters on a press call Tuesday that the administration remained hopeful that Congress would pass the USA Freedom Act before the looming deadline. But when pressed on whether alternatives were being explored in the event legislation is not enacted, Litt demurred. “I don’t think we’re making those kind of contingency plans at this point,” he said.
In a statement Tuesday, the Privacy and Civil Liberties Oversight Board, an independent executive branch watchdog, noted that “virtually all” of its recommendations made last year for overhauling the NSA’s foreign surveillance protocol have now been implemented. The board additionally said that “most” of its recommendations regarding domestic surveillance under Section 215 had been put into place, with one major caveat—bulk phone collection has not been halted.
“The administration has not implemented the board’s recommendation to halt the NSA’s bulk telephone records program, which it could do at any time without congressional involvement,” the board said.
Another section of the report addresses protections afforded to whistle-blowers, stating that all government employees have the right to report concerns “about wrongdoing without fear of retaliation.” That assurance is likely to rankle supporters of Snowden, who have said he tried to sound alarms internally before deciding to approach journalists with his trove of top-secret documents in June 2013. Senior intelligence officials have said that Snowden did not articulate significant concerns about the NSA’s spying programs.
Obama has been scrutinized for his administration’s unprecedented crackdown on government leakers, having overseen more prosecutions of individuals under the Espionage Act than all previous presidents combined. Last month, former CIA official Jeffrey Sterling was convicted on nine felony counts for leaking information about a botched U.S. operation to compromise Iran’s nuclear facilities.
Snowden is currently living in Russia under asylum. He has stated he will not return home because he would not be given a fair trial.
During his speech last year, Obama said he wanted to provide some limitations on how intelligence agencies can spy on foreigners—a goal that set the U.S. apart from other nations. But the disparity in how incidentally collected data from Americans is handled compared to that from non-U.S. persons is stark. While captured international emails or phone calls from an American must be deleted immediately if they are not relevant to investigations, a foreigner’s communications can be stored for up to five years.
Still, the overture represents a clear attempt to appease foreign nations, some of which have expressed outrage at the scale of the U.S.’s international snooping.
Notably, the report arrives one week before German Chancellor Angela Merkel is scheduled to visit the White House. Snowden documents published in 2013 appeared to reveal that the NSA had tapped Merkel’s personal phone, perhaps without Obama’s consent or knowledge.
The two countries have failed to agree on standards for intelligence-sharing since then, though tensions have continued. Last July, Merkel kicked the U.S.’s top spy out of her country.
The Office of the Director of National Intelligence said it would continue to work to improve privacy protections governing its surveillance apparatus, and promised to release another progress update in 2016 to further detail “ongoing progress to implement these reforms.”
Obama alluded to the report last month during his State of the Union address. The president said the forthcoming announcements would show “we’re keeping our promise to keep our country safe while strengthening privacy.”