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 Agency’s 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 government’s 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 the NSA’s “bulk” phone records collection, with the aim of devising an alternative approach that would preserve the agency’s access to the data for counterterrorism purposes. But Congress failed last year 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 FBI’s 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.
“I’m hopeful that in the four months we have until this expires, we’ll 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 doesn’t, 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 judge’s sign-off and require the recipient to turn over data such as a customer’s 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.
Officials are also imposing a new restriction on searching for Americans’ e-mails and phone calls collected without a warrant under what is often called the “Section 702” program under the Foreign Intelligence Surveillance Act. Now the NSA and the CIA must have a written statement of facts showing a query is reasonably likely to return foreign intelligence information before searching for a U.S. person’s name, e-mail address or other identifier in data collected under the program.
Privacy advocates still believe, however, that the term “foreign intelligence” is so broadly defined under FISA that it leaves great latitude to the agencies to conduct queries.
The administration also adopted a recommendation by the Privacy and Civil Liberties Oversight Board, an independent executive branch watchdog, that information about an American acquired under Section 702 will not be used as evidence against that person in a criminal case unless the attorney general has consented and only in criminal cases with “national security implications or certain other serious crimes.”
A “serious crime” clearly would include homicide and kidnapping, Litt said. But what other crimes fall into that category is under discussion. “If you have a major international [drug] cartel investigation that’s one thing,” he said. “If you have half a bag of marijuana, that’s another thing.”
The administration also is moving to align privacy protections for foreigners with those of Americans. Now foreigners’ personal data picked up by the NSA may be held for up to five years unless the director of national intelligence has determined in writing that retention is in the national security interests of the United States.
Again, the definition of national security interests is so broad, privacy advocates say, as to leave considerable latitude for longer retention.
Overall, said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, the new measures are a positive step.
“But the big picture,” Goitein said, “is that we still have massive amounts of Americans’ communications being collected under these foreign intelligence authorities and searched without a warrant.”