Obama's Parting Blow Against Privacy

Long before Donald Trump entered politics, I fretted about ongoing mass surveillance on Americans powered by technology beyond what’s found in some dystopian novels. We have no idea who the president will be in 2017, I wrote, “nor do we know who'll sit on key Senate oversight committees, who will head the various national-security agencies, or whether the moral character of the people doing so, individually or in aggregate, will more closely resemble George Washington, Woodrow Wilson, FDR, Richard Nixon, Ronald Reagan, John Yoo, or Vladimir Putin.” Whoever is in charge, I declared, “will possess the capacity to be tyrants––to use power oppressively and unjustly––to a degree that Americans in 1960, 1970, 1980, 1990, or 2000 could've scarcely imagined. To an increasing degree, we're counting on having angels in office and making ourselves vulnerable to devils.”

Critics called these warnings alarmist. As I worried about warrantless data collection on tens of millions of citizens, stored in an unprecedented trove that allows the secrets of innocents spied upon in 2007 to be accessed in 2017, they pointed to all the constraints on the NSA’s ability to access and share what it hoovers up. Nonetheless, I repeatedly urged President Obama to tyrant-proof the White House.

Instead, in the last days of his presidency, “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,” Charlie Savage reports in The New York Times. “The new rules significantly relax longstanding limits on what the N.S.A. may do with information gathered by its most powerful operations, which are largely unregulated by wiretapping laws … far more officials will be searching through raw data. Essentially, the government is reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.”

Robert Litt, general counsel of the Office of the Director of National Intelligence, wrote in defense of the new approach before the Justice Department adopted it:

These procedures will thus not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes. They will require individual elements of the Intelligence Community to establish a justification for access to signals intelligence consistent with the foreign intelligence or counterintelligence mission of the element. And finally, they will require Intelligence Community elements, as a condition of receiving signals intelligence, to apply to signals intelligence information the kind of strong protections for privacy and civil liberties, and the kind of oversight, that the National Security Agency currently has. In other words, the same kind of protections for individual privacy that exists for signals intelligence today will carry forward when that signals intelligence is shared pursuant to these procedures.

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 best defense of these changes? It appears in Wired, and it is rather frustrating in itself:

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.”

So for years, the powers that be were working on changing things in what civil libertarians regard as the wrong direction. And now that privacy standards are being relaxed—even as a man who seems to have no regard for civil liberties enters the White House—Americans are being asked to applaud the bad changes because they might preempt something worse. As I put it back in 2013, we’ve got all the infrastructure that a tyrant would need, courtesy of the Bush and Obama administrations. That remains true as Trump takes office. There are, alas, seemingly no prospects for executive or legislative reform in the immediate future—the Republican majority in Congress is worse on the Fourth Amendment than Obama, despite many calling themselves originalists and constitutional conservatives. Unless the judiciary asserts itself anew, Americans will remain vulnerable.