Daily Archives: February 3, 2015

The Obama administration on Tuesday announced a series of modest steps to strengthen privacy protections for Americans and foreigners in U.S. intelligence-gathering, including an end to the indefinite gag order on certain subpoenas issued to companies for customers personal data.

At the same time, U.S. intelligence officials said they were still hoping to fulfill a goal President Obama set a year ago: ending the National Security Agencys collection of millions of Americans phone records.

It was the revelation of that NSA program in June 2013 by former agency contractor Edward Snowden that set off a controversy over the scope of the governments surveillance powers and that led Obama in a speech last year to announce a number of reforms to intelligence-gathering practices.

The centerpiece of that speech was his call for an end to NSAs bulk phone records collection, with the aim of devising an alternative approach that would preserve the agencys access to the data for counterterrorism purposes. But Congress last year failed to pass legislation to achieve that.

The underlying authority for the collection will expire June 1. The administration fears the expiration would end not only the program but also the FBIs ability to obtain a broad range of information on a standard much lower than probable cause.

While privacy advocates believe the White House could unilaterally end the NSA program, administration officials are calling on Congress to pass legislation to do so.

Im hopeful that in the four months we have until this expires, well be able to get legislation passed, Robert S. Litt, the general counsel for the Office of the Director of National Intelligence, said in a phone call with reporters. Officials are not yet making contingency plans in the event it doesnt, he said.

The steps announced Tuesday by the administration are aimed at increasing transparency and privacy in an effort to rebuild public trust that was eroded in the wake of the Snowden disclosures. At the same time, Litt said, officials want to maintain operational capabilities needed to protect the nation and its allies.

Under the new measures, the FBI will lift indefinite gag orders on companies that receive administrative subpoenas, known as national security letters. NSLs are issued by a senior law enforcement official without a judges sign-off and require the recipient to turn over data such as a customers credit-card transactions, billing records and data on when and to whom an e-mail was sent or a phone call made. The gag order will now be dropped after three years or when an investigation ends, whichever comes first.

The three-year limit on NSL gag orders is a significant concession by the FBI, but it does not meet the constitutional standard, said Gregory Nojeim, senior counsel for the Center for Democracy & Technology. Instead, the FBI should have to go to court and prove a likelihood of harm if disclosure was allowed from the start.

Originally posted here:
As Obama tightens surveillance guidelines, uncertainty lingers on NSA program

By Stewart Baker February 3 at 3:22 PM

In this weeks episode, our guest is Rebecca Richards, NSAs director of privacy and civil liberties. We ask the tough questions: Is her title an elaborate hoax or is she the busiest woman on the planet? How long will it be before privacy groups blame the Seattle Seahawks loss on NSAs policy of intercepting everything? How do you tell an extroverted NSA engineer from an introvert? And, more seriously, now that acting within the law isnt apparently enough, how can an intelligence agency assure Americans that it shares their values without exposing all its capabilities?

In the weeks news, Jason Weinstein, Michael Vatis and I explore the DEAs license plate collection program and what it means, among other things, for future Supreme Court jurisprudence on location and the fourth amendment. We take on the WikiLeaks-Google flap and conclude that theres less there than meets the eye.

Jason celebrates a festival of FTC news. The staff report on the Internet of Things provokes a commissioner to dissent from feel-good privacy bromides. The FTC data security scalp count grows to 53, with more on the way. We discover that the FTC has aspirations to become the Federal Telecommunications Commission, regulating telecommunications throttling as well as cramming and apparently forcing the FCC into the business of regulating hotels. To be fair, we find ourselves rooting for the Commission as it brings the hammer down on a revenge porn site.

And Michael finds the key to understanding Chinas policies on cybersecurity and encryption.

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Volokh Conspiracy: DEA v. NSA the podcast

The Obama administration has announced a series of modest changes in the use of private data collected for intelligence purposes, a move that underscores how little the Edward Snowden revelations have impeded the National Security Agency's exploitation of global Internet communications.

Eighteen months after the first Snowden-fueled news story and one year after President Barack Obama delivered a major speech calling for changes to NSA data collection, the White House on Tuesday said it had tightened rules governing how the FBI, CIA and other intelligence agencies use Internet and phone communications of foreigners collected by the NSA. But the bulk collection would continue as robustly as ever, the announcement made clear.

Where once the data could be used for any reason and held forever, now it must fall into six specific threat categories and irrelevant data is to be purged after five years. But the categories are broad enough that an intelligence officer could find justification to use a piece of information on a foreigner if he or she feels the need. The information need only have some relevance to counter-espionage, counterterrorism, counter-proliferation, cybersecurity, countering threats to U.S. or allied armed forces or personnel; and combating transnational criminal threats.

The new policy also imposed more supervision over how intelligence agencies use the communications of Americans they acquire without individual warrants, making clear, for example, that such data may only be used to prosecute someone for "serious crimes" such as a murder or kidnapping, or national security crimes.

But the changes stopped well short of the recommendations of a presidential task force, including one that data collected by the NSA without warrants should never be used against an American in court, and another that such data should only be searched using the name of an American with a specific court order naming that person. Robert Litt, general counsel for the Office of the Director of National Intelligence, said in a conference call with reporters that those ideas were deemed too restrictive.

The result is that the private communications of Americans collected without warrants are still circulating around the government.

Moreover, Obama's most significant proposal in response to the Snowden leaks to end the NSA's bulk collection of domestic calling records has not been enacted. The president wants Congress to pass a law, and Congress has balked. The NSA is still collecting the records, even though Obama could stop the practice on his own.

"There's pressure to say we're doing something, and that leads to some symbolic changes or tweaks, but there would be a great reluctance to forswear access to intelligence like this," said Richard Betts, a professor at Columbia's School of International & Public Affairs and a former staffer in the 1970s congressional investigations of intelligence agencies.

"The reforms are far from sufficient and they really do tinker around the edges," said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union. "It's clear the administration is going to continue to stand by a lot of the mass surveillance policies."

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Surveillance Tweaks Illustrate Little Change After Snowden