N.S.A. Gets More Latitude to Share Intercepted Communications
By <http://www.nytimes.com/by/charlie-savage> CHARLIE SAVAGEJAN. 12, 2017
WASHINGTON In its final days, the Obama administration has expanded the
power of the National Security Agency to share globally intercepted personal
communications with the governments 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.
The change means that 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.
Attorney General Loretta E. Lynch signed the new rules, permitting the
N.S.A. to disseminate raw signals intelligence information, on Jan. 3,
after the director of national intelligence, James R. Clapper Jr., signed
them on Dec. 15, according to a 23-page, largely declassified copy of the
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.
But Patrick Toomey, a lawyer for the American Civil Liberties Union, called
the move an erosion of rules intended to protect the privacy of Americans
when their messages are caught by the N.S.A.s powerful global collection
methods. He noted that domestic internet data was often routed or stored
abroad, where it may get vacuumed up without court oversight.
Rather than dramatically expanding government access to so much personal
data, we need much stronger rules to protect the privacy of Americans, Mr.
Toomey said. Seventeen different government agencies shouldnt be rooting
through Americans emails with family members, friends and colleagues, all
without ever obtaining a warrant.
The N.S.A. has been required to apply similar privacy protections to
foreigners information since early 2014, an unprecedented step that
President Obama took after the disclosures of N.S.A. documents by the former
intelligence contractor Edward J. Snowden. The other intelligence agencies
will now have to follow those rules, too.
Under the new system, agencies will ask the N.S.A. for access to specific
surveillance feeds, making the case that they contain information relevant
and useful to their missions. The N.S.A. will grant requests it deems
reasonable after considering factors like whether large amounts of
Americans private information might be included and, if so, how damaging or
embarrassing it would be if that information were improperly used or
The move is part of a broader trend of tearing down bureaucratic barriers to
sharing intelligence between agencies that dates back to the aftermath of
the terrorist attacks of Sept. 11, 2001. In 2002, the Foreign Intelligence
Surveillance Court secretly began permitting
d-spies-reach.html> the N.S.A., the F.B.I. and the C.I.A. to share raw
intercepts gathered domestically under the Foreign Intelligence Surveillance
After Congress enacted the FISA Amendments Act which legalized warrantless
surveillance on domestic soil so long as the target is a foreigner abroad,
even when the target is communicating with an American the court permitted
raw sharing of emails acquired under that program, too.
In July 2008, the same month Congress passed the FISA Amendments Act,
President George W. Bush modified Executive Order 12333
<https://fas.org/irp/offdocs/eo/eo-13470.htm> , which sets rules for
surveillance that domestic wiretapping statutes do not address, including
techniques that vacuum up vast amounts of content without targeting anybody.
After the revision, Executive Order 12333 said the N.S.A. could share the
raw fruits of such surveillance after the director of national intelligence
and the attorney general, coordinating with the defense secretary, agreed on
procedures. It took another eight years to develop those rules.
The Times first reported
ance-violates-rights-says-departing-aide.html> the existence of those
deliberations in 2014 and later filed a Freedom of Information Act lawsuit
<http://www.charliesavage.com/?page_id=303#anchor6> for documents about
them. It ended that case last February, and Mr. Litt discussed the efforts
expand-sharing-of-data-that-nsa-intercepts.html> in an interview at that
time, but declined to divulge certain important details because the rules
were not yet final or public.
Among the most important questions left unanswered in February was when
analysts would be permitted to use Americans names, email addresses or
other identifying information to search a 12333 database and pull up any
messages to, from or about them that had been collected without a warrant.
There is a parallel debate about the FISA Amendments Acts warrantless
surveillance program. National security analysts sometimes search that acts
repository for Americans information, as do F.B.I. agents working on
ordinary criminal cases. Critics call this the backdoor search loophole,
and some lawmakers want to require a warrant for such searches.
By contrast, the 12333 sharing procedures allow analysts, including those at
the F.B.I., to search the raw data using an Americans identifying
information only for the purpose of foreign intelligence or
counterintelligence investigations, not for ordinary criminal cases. And
they may do so only if one of several other conditions are met, such as a
finding that the American is an agent of a foreign power.
However, under the rules, if analysts stumble across evidence that an
American has committed any crime, they will send it to the Justice
The limits on using Americans information gathered under Order 12333 do not
apply to metadata: logs showing who contacted whom, but not what they said.
Analysts at the intelligence agencies may study social links between people,
in search of hidden associates of known suspects, without regard to the
location or nationality of the communicants.
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