On Jan. 3, just weeks before U.S. President-elect Donald Trump’s inauguration, outgoing Attorney General Loretta Lynch signed off on an expansion of inter-agency intelligence sharing, allowing the National Security Agency to share raw “signals intelligence” data with other intelligence community members without “scrubbing” it first.
A fact sheet released by the Office of the Director of National Intelligence stressed that the rule change would not allow querying the NSA’s database for domestic law enforcement purposes, instead only allowing intelligence sharing “where the information is expected to further a foreign intelligence or counterintelligence mission in a significant way.” But even still, the fact sheet notes that once intelligence agents have been granted access to the NSA’s vast data trove, “they may report evidence of a possible crime that they encounter in the course of conducting authorized foreign intelligence or counterintelligence activities.”
Undoubtedly, more information on law-abiding Americans — whether traveling or communicating with people in other countries or simply unwittingly connected to foreigners through acquaintances — will be swept up and shared more broadly than previous rules allowed.
The New York Times reports that the revised 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.”
This expansion of access to data collected through already controversial federal surveillance programs by appointees of President Obama in the last days of his administration has already received significant criticism.
“The fact that they’re relaxing these privacy-protective rules just as Trump is taking the reins of the surveillance state is inexplicable to me,” Nate Cardozo, an attorney with the Electronic Frontier Foundation, told Wired. “The changes they’re making today are widening the aperture for abuse to happen just as abuses are becoming more likely.”
Cardozo noted that the change opens the door to much more widespread use of “parallel construction,” a technique which “involves secretly using the NSA’s intelligence to identify or track a criminal suspect, and then fabricating a plausible trail of evidence to present to a court as an after-the-fact explanation of the investigation’s origin.”
Julian Sanchez of the Cato Institute also told the publication that there could be “a huge loophole hiding behind those black bars,” referring to redactions in the publicly-released version of the document outlining the rule changes.
“Rather than dramatically expanding government access to so much personal data, we need much stronger rules to protect the privacy of Americans,” the American Civil Liberties Union’s Patrick Toomey told the Times. “Seventeen different government agencies shouldn’t be rooting through Americans’ emails with family members, friends and colleagues, all without ever obtaining a warrant.”
Gabe Rottman of the Washington D.C.-based Center for Democracy and Technology similarly wrote that “this pool of data is going to contain an extraordinary amount of sensitive information about people who have likely done nothing wrong.”
Aside from the very predictable talking heads such as Robert Litt, an attorney for Director of National Intelligence James Clapper, defenders of the rule change have been comparatively few and far between, though they include Brookings Institution fellow and Lawfare managing editor Susan Hennessey.
Hennessey told the Atlantic (which editorialized that the move to extend intelligence sharing capabilities “could be to prevent Trump from extending them even more”) that “it’s important to understand that these minimization procedures are taken very seriously, and all other agencies that are handling raw signals intelligence are essentially going to have to import these very complex oversight and compliance mechanisms that currently exist at the NSA.”
Hennessay added that she thinks “the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.”
It would seem that the only real substantive difference between approving the changes in the last days of the Obama administration rather than the first days of the Trump presidency is one of optics. President Obama is still largely thought of as retaining a favorable, moderate image by much of the intelligence community, largely centered as it is in the Washington, D.C. suburbs, while mainstream media such as the Washington Post continue to brand Trump as an active agent of the Kremlin.
The difference between the old rules and the new may be more substantive, however, and it makes sense that the spooks likely to abuse them in the near future would want the seal of approval of an administration that has managed to largely remain above mainstream media criticism for its actions over the last eight years — due to the very same nauseating, hypocritical and disingenuous political correctness that lost the 2016 election for the Democrats. What use the Trump administration makes of these expanded intelligence sharing capabilities remains to be seen.