Minimal Tweaks To The Government's Surveillance Apparatus Reaffirm That Status Is Still Mainly Quo

from the although-the-FBI-may-be-partially-out-of-the-parallel-construction-business dept

The Privacy and Civil Liberties Oversight Board -- reconvened in a hurry after Snowden began leaking -- has just released a followup report on its recommendations for NSA surveillance program fixes. What it found was that some progress had been made, but most of its major recommendations (like shutting down the Section 215 program) were barely underway. In some cases, its recommendations had been ignored completely -- like its call for some measure of the Section 215 and Section 702 program's effectiveness in fighting terrorism. To date, no data has been provided by the NSA that would justify these bulk surveillance programs.

The Office of the Director of National Intelligence has just released a list of surveillance program tweaks for the NSA (and the agencies that dip into the haystacks: the FBI and CIA). Changes are being made, although many of them are minimal and others are hidden behind a wall of secrecy. The administration -- which ordered the convening of the PCLOB and backed up its findings -- has said very little about the NSA's programs over the intervening months.

The New York Times, covering the rule tweaks, was only able to obtain statements from unnamed government officials. The exposure of surveillance on foreign leaders in allied countries (primarily Germany's Angela Merkel) generated a lot of heat, ultimately resulting in a rare promise from President Obama himself that this would be discontinued. Presumably, other world leaders have been dropped from the surveillance list, but it's anyone's guess which ones are no longer being eyeballed by the NSA.

Mr. Obama has never said whom, beyond Ms. Merkel, he took off the list of foreign leaders whose conversations are monitored, but it appeared that programs in Mexico and Brazil continued, while several dozen leaders have been removed.

“There’s now a process in place that the National Security Council runs,” said one senior official. But the results of that process — especially the names of leaders whom the White House plans to keep monitoring — will remain secret.

The administration has announced some smaller tweaks as well, including some targeting one of its most abused pieces of paper: the National Security Letter. When a warrant or information request is rejected, agencies (mainly the FBI) deploy these instead. NSLs will still be abused, but the public may have a chance to finally see the abuse for themselves.

In the new rules, “the F.B.I. will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years” after the opening of an investigation, the administration will announce, or at the close of the investigations. But an exception can be made if a midlevel F.B.I. official offers a written justification for continued secrecy.

The exception can be expected to swallow the rule. Rarely, if ever, does any judge challenge the government's national security claims -- which will likely be the "written justification" used most to push NSL gag orders in the direction of "forever."

There is a small chance legislators will allow the Section 215 program to die. The expiration date for the bulk metadata program is June 1st. The companies affected by these orders have demanded they be "compelled" to turn over the data, which would take an act of Congress. If Congress isn't up for it, the expiration date could pass and finally end the controversial (and useless) program. But given recent terrorist attacks and highly-visible ISIS activity, the legislative pendulum is likely swinging back towards more surveillance and fewer surveillance reforms.

The changes that are being implemented don't solely affect the NSA. As noted above, the FBI and CIA also have access to the NSA's collections under these programs (phone metadata, email content). It's no secret the FBI has used NSA data in the past (along with other related agencies), disguising its origin through parallel construction. The programs' guidelines allow the NSA to pass on information related to criminal activity or possible criminal activity. This may no longer be the case. The wording is vague but as Marcy Wheeler (of the essential surveillance-focused blog Emptywheel) reads it, it seems to suggest the FBI will no longer have this option.

If FBI is adopting "new" policy of only using 702 info against people in NatSec cases that means existing policy was?

The old policy can be somewhat gleaned from FISA court opinions obtained via FOIA lawsuits. FISA judge Roger Vinson noted this in his 2007 decision granting the NSA permission to continue with its email collection program (Section 702):

Information that is not foreign intelligence information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be disseminated (including United States person identities) to the FBI and other appropriate federal law enforcement authorities, in accordance with 50 U.S.C. 1806(b), Executive Order No. 12333…

This would indicate the FBI has used these programs in its investigative work over the past seven years, if not longer. The parallel construction hid the information's origin from both the courts and defendants. There was simply no way the government was going to expose its domestic surveillance programs in court, at least not until Snowden's leaks made its secrecy moot.

Now, after multiple years of the FBI allowing the NSA to do its dirty work in the name of "national security" (something the FBI would never be allowed to do under the auspices of law enforcement), the system is finally being reset to where most Americans always assumed it had been: NSA for national security and FBI for law enforcement, rather than the perversely symbiotic relationship the agencies talked legislators and the FISA court into supporting. Not that this means the FBI won't have access to the data (it is in the national security business as well), but it should curtail its tendency to use the easiest available method, regardless of legality.

Filed Under: fbi, nsa, odni, surveillance