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On Thursday the New York Times reported that the Obama Administration had recently finalized rules to give the National Security Agency (NSA) more leeway in sharing its vast trove of intercepted communications with the 15 other government agencies that make up the Intelligence Community.
Previously, agencies like the Drug Enforcement Agency and the Federal Bureau of Investigation would have to request information on a target from the NSA.
The NSA, in turn, would retrieve communications pertaining to that target and scrub the documents of information that was considered irrelevant to the search, including the names of innocent Americans—a process called “minimization.” Now, that middle step has been cut out.
The agencies need only get approval from the NSA to access its data, and agents from the agencies are expected to carry out minimization on their own.
As the New York Times puts it, “Essentially, the government is reducing the risk that the NSA 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.” Although the agency analysts who will have access to the NSA’s surveillance powers are directed to ignore and redact information pertaining to innocent Americans, if they see evidence of criminal acts in the data they access, they are directed to hand it over to the Justice Department.
The move has been anticipated for a year—the New York Times reported on the draft proposal back in February 2016—but in mid-December Director of National Intelligence James Clapper approved the new rules, which will amend Reagan-era executive order 12333, and last week Attorney General Loretta Lynch finally signed off on them as well.
Congressional approval was not necessary to implement the changes.
Several agencies already have access to the NSA’s raw data under the Foreign Intelligence Surveillance Act (FISA).
These new rules don’t change who has access to FISA data, but they allow national security analysts to access communications made over satellite transmission, as well as phone calls, e-mails that cross international borders, and e-mails that are sent between foreigners that pass through American networks.
Analysts from other agencies may “search the raw data using an American’s identifying information only for the purpose of foreign intelligence or counterintelligence investigations,” according to the Times.
The rules have been opposed by civil rights and privacy advocates as lacking protections to prevent abuse.
In a statement, American Civil Liberties Union legislative counsel Neema Singh Guliani said, “The procedures released today allow more agencies to directly access information collected by the NSA without a warrant under procedures that are grossly inadequate.
This raises serious concerns that agencies that have responsibilities such as prosecuting domestic crimes, regulating our financial policy, and enforcing our immigration laws will now have access to a wealth of personal information that could be misused.
Congress needs to take action to regulate and provide oversight over these activities.”