New NSA rules allow agency to share data without privacy protections or terrorism links

New NSA rules allow agency to share data without privacy protections or terrorism links
A consistent argument the NSA and its defenders have offered for the agency’s behavior since 9/11 is that its mass surveillance and warrantless wiretapping programs are required to fight terrorism.

A consistent argument the NSA and its defenders have offered for the agency’s behavior since 9/11 is that its mass surveillance and warrantless wiretapping programs are required to fight terrorism. One of the persistent fears of privacy advocates has been that these programs will be expanded into domains with absolutely no relation to terrorism. Now, the Obama administration has drafted rules that will allow the FBI and other agencies full access to the raw data that the NSA collects without any safeguards or privacy protections.

The New York Times explains how the process used to work, and how it work in the future:

Until now, National Security Agency analysts have filtered the surveillance information for the rest of the government. They search and evaluate the information and pass only the portions of phone calls or email that they decide is pertinent on to colleagues at the Central Intelligence Agency, the Federal Bureau of Investigation and other agencies. And before doing so, the N.S.A. takes steps to mask the names and any irrelevant information about innocent Americans.

The new system would permit analysts at other intelligence agencies to obtain direct access to raw information from the N.S.A.’s surveillance to evaluate for themselves. If they pull out phone calls or email to use for their own agency’s work, they would apply the privacy protections masking innocent Americans’ information — a process known as “minimization” — at that stage, Mr. Litt said.

We’ve known for several years that the NSA has provided evidence of drug trafficking to the DEA, which then created alternate justifications for how it knew which cars to pull over. This process was euphemistically dubbed “ parallel construction” or “lying to the judge,” if you prefer a more honest version of the facts. Now, the FBI will have full and unrestricted access to this information. Given that the FBI has actively encouraged local and state police departments to lie to judgesabout their use of surveillance technologies, it’s hard to argue that the agency deserves to be trusted with this capability.

This isn’t a partisan problem

The NYT article also dives into how we got to this point. The reason the executive branch has the authority to make these kinds of decisions is because of Executive Order 12333, issued by President Reagan in 1981. That document, which dealt with surveillance and data collection on foreign countries as well as data sharing between the various government agencies, is viewed as a foundational document for the modern surveillance state. The NSA relied on it when justifying its surveillanceof both Google and Yahoo’s data centers. George W. Bush strengthened and broadened the application of EO 12333 in two subsequent executive orders, 13355 and 13470. The Obama administration has been working to carry out the directives expressed in both of those orders for the past seven years, and those efforts are finally nearing fruition.

NSA leaked slide showing PRISM Collection Details. It turns out that this was just the beginning

The NYT has created a chart spelling out the differencebetween FISA and EO 12333. In short, there’s no court oversight of evidence gathered via the latter method, and no limits to the number of “hops” an analyst may take to examine additional data.

There is, in other words, plenty of cross-aisle blame to go around on this. The larger problem is the adoption of new sharing rules that explicitly endorse the kind of bad behavior we already know is rampant throughout the system.

Putting the Apple case in focus

The last point we want to make involves the Apple iPhone situation and the San Bernardino shootings in December. Apple has maintained that forcing it to unlock the device by building a new, compromised firmware to do so is burdensome and damaging to the company past the degree of cooperation required by the law. It’s also argued that this would set an extremely dangerous precedent— a position multiple security experts have agreed with.

If you step back and take the long view on the issues playing out today, it’s hard to dispute Apple’s position. The government used to justify these policies by appealing to a need to fight terrorism. We now know that stingrays and “parallel construction” have been used in cases that had absolutely nothing to do with terrorism or fighting foreign combatants. Now, the government is set to approve rules that give US intelligence agencies more access to personal information about ordinary Americans. The “terrorism” explanation has been neatly dropped. Now these measures are meant to catch ordinary criminals.

For now, the government still argues that these rules apply to foreign communication, not domestic — but how long before these rules fall as well? After all, there’s no rule that says Americans can’t commit terrorism within the United States. Despite minor changes to these programs in the wake of public outcry, the surveillance machine rolls on largely unchallenged.