Obama Administration Announces New Rules on NSA Spying

A new report from the intelligence community outlines post-Snowden changes to how the government spies on Americans and foreigners.

President Barack Obama speaks about the National Security Agency (NSA) and intelligence agencies surveillance techniques at the US Department of Justice in Washington, DC, January 17, 2014.
National Journal
Feb. 3, 2015, 6 a.m.

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.”

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