The waning hours of the Obama administration are nothing if not interesting. He his orchestrating nebulous leaks from the intelligence community to undercut his successor. He imposed sanctions on Russia after having ignored Russian hacking for years. Yesterday, he unilaterally changed US immigration policy that rewards “children” coming across the Mexican border and punishes people trying to escape a communist dictatorship. Today, he struck again:
In its final days, the Obama administration has expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections.
The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone calls and emails that cross network switches abroad, and messages between people abroad that cross domestic network switches.
Previously, the N.S.A. filtered information before sharing intercepted communications with another agency, like the C.I.A. or the intelligence branches of the F.B.I. and the Drug Enforcement Administration. The N.S.A.’s analysts passed on only information they deemed pertinent, screening out the identities of innocent people and irrelevant personal information.
Now, other intelligence agencies will be able to search directly through raw repositories of communications intercepted by the N.S.A. and then apply such rules for “minimizing” privacy intrusions.
“This is not expanding the substantive ability of law enforcement to get access to signals intelligence,” said Robert S. Litt, the general counsel to Mr. Clapper. “It is simply widening the aperture for a larger number of analysts, who will be bound by the existing rules.”
This is incredible in both its scope and its timing.
Be that as it may—redactions in the new rules make it impossible to know what exactly lurks within—some data formerly available to one intelligence agency, a limit imposed by government actors who saw value in the former arrangement, is now available to 16 intelligence agencies. That would seem to significantly increase the chance of mischief. Even if 15 of those agencies are filled with patriots who’d never dream of misusing data or metadata gathered on Americans, and who protect that data from being hacked with best practices, one agency might be corrupted by the president, or have poor information security. Bad actors at the top would seem to have more avenues for successful abuse, and innocents at the bottom would seem to have a higher risk of being subject to it. Neither that tradeoff nor any other is mentioned by Litt, suggesting that national-security officials are out to sell this change more than to fully inform the public.
Here’s another concern.
Under the new rules, when intelligence gathering reveals evidence of domestic lawbreaking, “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,” Kate Tummarello explains at the Electronic Frontier Foundation.
The government no longer needs probable cause to investigate you, all they need is for you to communicate with someone who has popped on their radar (think about the TSA no-fly list, for example) and for you to say something that leads them to believe you may have committed a crime and it is off to the races.
The timing is nothing more than a way of locking Trump into a decision that would have caused a firestorm of objections had Obama announced it earlier. If he does withdraw this regulation and we have a terror attack on our soil, you can bet Obama toadies in the Intelligence Community, and there a tons of them, will be on every cable news network blaming Trump and claiming this regulation would have saved lives. The defense the Obama administration is making is the definition of chutzpah:
The change, says former NSA lawyer Susan Hennessey, makes it far more politically complicated for the Trump administration to rewrite the rules themselves, which might have allowed for even more liberal use of the NSA’s data. This change, for instance, was years in the making; now finalized, amending them rules again could take years longer.
“For anyone concerned about possible abuses following transition, these procedures being finalized should be welcome news,” Hennessey writes to WIRED. “I’d imagine finalizing these rules, and thus making future changes exponentially more difficult, was a very high priority for the outgoing administration.”