CIA Slightly Scales Back Its Domestic Surveillance Powers In First Major Policy Update In Over 30 Years
from the we-promise-to-try-to-try dept
Ahead of Trump's inauguration, the CIA announced changes to its rules on gathering/using (inadvertently or otherwise) data and communications from American citizens. Other than this being the timeframe in which it happened, this process was likely in the works for months, rather than a panicked, last-minute attempt to keep an incoming president from redirecting the agency's foreign-based focus. (h/t Julian Sanchez)
But still, it's tempting to equate the two: Trump's swearing in and a slight scaling back of the CIA's domestic reach. The outgoing head of the agency was none too happy with Trump's tweets criticizing the intelligence community for not doing whatever it is Trump imagines it should have done about Buzzfeed publishing an opposition-funded dossier about his alleged ties to Russia. Trump compared life under this supposedly-incapable intelligence community to that of Nazi Germany, while also making statements about buddying up with Russia. Exiting CIA Director John Brennan seemed a little irked.
"I think he has to be mindful that he does not have a full appreciation and understanding of what the implications are of going down that road,” Brennan said on “Fox News Sunday,” a show Trump routinely watches.
“Now that he’s going to have an opportunity to do something for our national security as opposed to talking and tweeting, he’s going to have tremendous responsibility to make sure that U.S. and national security interests are protected,” Brennan added.
Brennan also objected to the "Nazi Germany" comment, standing up for all the fine (and probably some not-so-fine) people in the intelligence community. Given this backdrop, it might appear as though the updated CIA interpretation [PDF] of Executive Order 12333 is a response to Trump's tweets and statements, but it's more likely the agency did this in response to the Snowden leaks, which made any form of domestic surveillance by foreign intelligence agencies look a whole lot sketchier.
In a rare case of proactivity, the CIA has finally altered something it hadn't officially revamped in more than 30 years.
Earlier this month, the Director and the Attorney General approved new Attorney General Guidelines consolidating and updating the CIA’s procedures, some of which had not been significantly updated since 1982. In the intervening decades, the CIA implemented a number of additional changes in internal regulations and policies to address changes in law and technology not contemplated in the 1980s. The new, consolidated Attorney General Guidelines now incorporate many of these intervening changes, thereby providing a more unified and comprehensive set of procedures that permit the CIA to use and share intelligence information to support national security objectives in a manner that protects the privacy rights and civil liberties of all Americans.
The new guidelines add more restrictions to the CIA's use of domestic data and communications. It requires the agency purge any incidentally-collected US persons' communications within five years -- a solid improvement over its previous deadline of "never."
But with that (incrementally) good news comes some bad news:
The five-year limit on holding information applies only to the most sensitive categories of information, including email or cellphone intercepts — data that might otherwise remain in agency systems without being exploited or evaluated. Less-sensitive information is to be expunged after 25 years.
There are also additional reporting and compliance requirements meant to curtail the CIA's snooping on US persons' communications and data. Unfortunately, the specifics of these requirements are left mostly to the imagination, despite the CIA -- for the first time ever -- publishing a fully-declassified and unredacted version of its 12333 rules.
Also on the bad news side is the fact that the new restrictions rely on the interpretation of an executive order, which could be altered or replaced by the incoming president. Not only that, but the new CIA head -- Mike Pompeo -- could just as easily roll back the latest policy updates.
Also of note is the fact that, despite the incremental changes, the CIA still isn't super-concerned about Americans' civil liberties.
CIA officials acknowledged that the revisions were made without input from civil liberties groups, including the American Civil Liberties Union, which have pushed for more aggressive measures to protect Americans’ privacy than are envisioned in the updated guidelines.
As an agency with no master but the President (its "oversight" never seemed too troubled about its independent actions until it was spied on), the CIA has a lot of leeway in how it carries out its foreign intelligence operations. Whether or not we can trust the CIA to play by its own rulebook is still up in the air. It still works closely with the FBI to perform foreign intelligence collections, and recent loosening of restrictions on sharing NSA-collected, unminimized US persons' data/communications means the FBI will have even more access to information the CIA isn't supposed to touch.
And there's nothing in the new rules that suggests the CIA's practice of engaging in Section 702 backdoor fishing expeditions (often at the behest of the FBI). The summary [PDF] notes the CIA is not allowed to engage in intelligence collections targeting US persons directly, but it is still allowed to point other agencies in this direction and make use of anything collected by that agency.
With narrowly defined exceptions regarding testing and training, the CIA may not use special collection techniques in the United States. The CIA is, however, permitted to ask another federal agency to perform special collection techniques in the United States under that agency’s legal authorities. The CIA may also provide technical equipment or knowledge to another federal agency in conducting authorized special collection in the United States with the approval of the CIA’s General Counsel. The CIA may conduct special techniques outside the United States that target a United States person only with the approval of the Director of the CIA (or his designee), the CIA General Counsel, the Attorney General, and (where applicable) the Foreign Intelligence Surveillance Court.
On the bright side, the push for greater transparency from the intelligence community appears to actually be working, as both 12333 documents have been provided in a timely manner by the agency, fully-declassified and free of redactions.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cia, domestic surveillance, surveillance
Reader Comments
Subscribe: RSS
View by: Time | Thread
For a very loose definition of 'protects'
thereby providing a more unified and comprehensive set of procedures that permit the CIA to use and share intelligence information to support national security objectives in a manner that protects the privacy rights and civil liberties of all Americans.
By all means, how exactly does this 'protection' apply then?
The five-year limit on holding information applies only to the most sensitive categories of information, including email or cellphone intercepts — data that might otherwise remain in agency systems without being exploited or evaluated. Less-sensitive information is to be expunged after 25 years.
Five years for 'sensitive categories' like email/cellphone intercepts, twenty-five for anything short of that.
The CIA is, however, permitted to ask another federal agency to perform special collection techniques in the United States under that agency’s legal authorities.
"We can't technically spy on US citizens ourselves, but we can and will ask another agency to do it for us."
Oh yes, I can see their dedication to protecting the privacy and civil liberties of the american public remains as strong as ever.
[ link to this | view in chronology ]
Rogue Agency
no amount of word-smithing or ink on paper will bring the CIA under control.
It's a dangerous rogue agency and has been so since WW II end.
Abolish it and bring its prime function (intelligence coordination back under the DoD Joint Chiefs of Staff ... as it was originally instituted in 1942 as the Office of Strategic services (OSS).
CIA mission absolutely belongs under the Department of Defense -- and there is no Constitutional authority whatsoever for the existence of the CIA in its current form.
[ link to this | view in chronology ]
Re: For a very loose definition of 'protects'
You forgot the latter part of that rationalization, hinted at by the Techdirt article:
"In a completely unrelated matter (wink), the FBI is requesting to borrow some of our toys for this really high priority domestic surveillance case that just landed in their lap out of nowhere..."
[ link to this | view in chronology ]
So, they've retroactively and unilaterally declared legal:
metadata collected illegally for the past 25 years.
2. All email messages and cellphone conversations collected
illegally for the past five years.
Now they can stop deleting illegal collections of mass data
for awhile and will continue expanding their giant data bunker;
a project which was, temporarily, under threat by legislators.
This was a step back, not forward;
entrenching gains from Bush and Obama.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Stop voting in tool bags like Obama, or Hillary, or Trump
[ link to this | view in chronology ]
"Stop voting in tool bags like Obama, or Hillary, or Trump"
Those are the options we're given.
If we want better options we have to kill FPTP.
And that will take a massive grassroots push for election reform.
Though, now that we have a fast-talking salesman in office, a push for election reform might gain some traction.
[ link to this | view in chronology ]
Re: "Stop voting in tool bags like Obama, or Hillary, or Trump"
Not to mention the electoral college.
[ link to this | view in chronology ]
Killing FPTP
If we reformed our election system so that it was no longer first-past-the-post, I cannot imagine how the electoral college as it stands could survive.
With the EC's failure to stop the Trump election, I think we have an indictment that the college portion of it has already failed.
And if we shifted to a pure popular vote system, then every vote would count regardless of the state it was in (every state really is kinda-purplish). Both California and Texas would cease to be the bulwark states that they currently are.
We might want to weight some votes over others (say, make 1 rural vote = 1.1 urban votes) though I can't really imagine a logical reason we would want to...
...wait, yes I can. There are some arguments to be made for giving voters with underage or infirm dependents more weight. But I'd want to see some statistical models of how that would play out first.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Another important point would be getting the Executive branch to understand that THEY DON"T MAKE LAW, Congress does. The Executive is charged with ENFORCING the laws that Congress makes. Something apparently lost on the last several Presidents, including the current one.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
Hold on a sec, Hillary lost - who's the tool here?
[ link to this | view in chronology ]
"who's the tool here?"
With Trump in office, we are all chumps to the last.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Yes. Scale back this idea that the Executive can enforce those laws he likes, amend or reinterpret those he thinks ought to be a bit different, and ignore those he dislikes. If the Executive were obligated to enforce the law as written and were forbidden to "interpret" the law in a way that is automatically legally binding, then doing all the things you want is as simple as saying that you need Congress to pass a law directing the Executive to do each of those things, and then you need to prevent the next Congress from passing a repeal bill. Congress is well known for its inaction, so repeal bills are relatively rare.
[ link to this | view in chronology ]
The problem with passing a law to direct the executive...
...is that it implies the legislature has more power than the executive, which it does not.
This is why, ever since the War Powers Act of 1973, the President has complied with it but only in consistency with the law, not in compliance. If the President were ever to challenge a law, and the legislature and courts insisted that he complied, the United States would suffer a constitutional crisis.
...which is probably going to happen very soon now, since Trump does what ever the fuck he wants. (Including fucking whoever he wants.)
[ link to this | view in chronology ]
Re: The problem with passing a law to direct the executive...
Maybe. So far, despite his bluster, he's fallen in line pretty closely with what the Republican establishment wants (could be because Pence and Bannon are actually running the show). I think he'll have enthusiastic cooperation from the congressional majority (and, soon, SCOTUS majority) as long as he keeps giving them what they want. The resistance against him from within his own party so far has been all sizzle and no steak; look at guys like Rubio, McCain, and Graham talking tough about blocking Tillerson's nomination and then saying "Nah, just kidding" as the vote got closer.
But he is indeed unpredictable, and petty. If he stops giving the party establishment what it wants, they may turn on him. Especially if his approval rating stays this low (or gets worse) and if they decide that cooperating with him could hurt their chances at reelection.
But whether any of those things will happen? Hard to say. Could be he just lets Pence and Bannon keep the reins while he grumbles on Twitter.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
1, the Bill of Rights still applies to Americans in America. We still have "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In English that means "F**k the CIA."
2, The author writes, "the CIA announced changes to its rules on gathering/using (inadvertently or otherwise) data and communications from American citizens." Who but an idiot believes anything these monkeys say?
[ link to this | view in chronology ]
CIA scales back it powers?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Token Rearrangement of Deck Chairs on the Titanic
Whether or not we can trust the CIA to play by its own rulebook is still up in the air.
Based upon almost 70 years of CIA's past history the answer is a resounding yes, CIA can play by its own rulebook and that is the problem CIA cannot and has not played by the rulebook (aka US Constitution) that supposedly governs the rest of the nation.
This problem that has confronted most if not all of the US governments various departments, agencies and agents they all play well within their own rulebook but when faced with the laws that govern the rest of the nation they all to often seek to circumvent the law in the name of expediency.
"...in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution..." ~Thomas Jefferson, Kentucky Resolutions of 1798
[ link to this | view in chronology ]
The CIA rulebook vs. the US Constitution
This is a problem that is normal with all espionage organizations: what they do is intrinsically criminal, and the state has to depend on a commitment by the organization's members to do criminal things to the benefit of the state.
An organization that operates within the constrains of the US Constitution is no longer espionage, but simply Law Enforcement.
And yes, this is why so many law enforcement agencies (we're looking at you, FBI) are re-branding themselves as national security minded espionage agencies. It allows them to break laws that they could never break before, but it also weakens their standing in the courts. And yes, many institutions want to have their cake and eat it too (have legal enforcement powers without legal enforcement constraints).
Meanwhile back at CIA, its rulebook is meant to define what illegal activities (including unconstitutional activities) are allowable within the purview of state-endorsed criminal action.
Ideally, we'd have a nifty secret court who made sure that our spies didn't get too sloppy or too greedy. A mole in the KGB, for instance, would get his KGB pay docked from his CIA pay. Other policies could get a whole lot more nuanced...
For instance when it is right to retire someone by command of the President...
...or when it is right to retire the President.
[ link to this | view in chronology ]
Re: The CIA rulebook vs. the US Constitution
"it also weakens their standing in the courts"
Not necessarily, because most jurors and judges still think that laws written in 1984-2000 when due process rights and privacy were still in vogue apply to the law today, where neither exist in actuality (think backdoor FBI searches that trickle down to local LEO's; and the DEA SOD database abuse etc.)
And with years of prior surveillance and harassment of 'suspects' aka 'victims to flip' and then, parallel constructions that span years as well- added to judges who are in on it, and voila!
The courts are just another monkey in the see no/say no/hear no evil paradigm, and convictions are because 'we said so,' not because of guilt as defined by intent, mens rea, or free will. These endless 'investigations' via the DHS dossier's certainly add a new paradoxical element to anything that comes before a court.
And that old idea of "free will" certainly must be tested if it is to endure into the future.
[ link to this | view in chronology ]
But it's not Nazi's-its the DHS "umbrella"of love and multi-cultists
Obama used these agencies like a racist "multi-cultural" version of the Klan.FBI/DHS dossier's, and hidden "disruption campaigns" set the standard for worse things to come.
The way he used the IRS to target third parties, his use of community policing to terrorize dissenters, activists, and other was directly comparable to Nazi brownshirts.
The abuses that went on during Obama's tenure have often been compared to Nazi Germany, and Trump was elected because Americans realized that the 'umbrella' was full of racialized, religious and sectarian holes.
[ link to this | view in chronology ]