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As the privacy and civil liberty community braces for Donald Trumps impending control of US intelligence agencies like the NSA, critics have called onthe Obama administration to rein in those spying powers before a man with a reputation for vindictive grudges takes charge. Now, just in time for President-elect Trump to inherit the most powerful spying machine in the world, Obamas Justice Department has signed off on new rules to let the NSA share more of its unfiltered intelligence with its fellow agenciesincluding those with a domestic law enforcement agenda.

Over the last month, Director of National Intelligence James Clapper and Attorney General Loretta Lynch signed off onchanges to NSA rules that allow the agency to loosen the standards for what raw surveillance data it can hand off to the other 16 Americanintelligence agencies, which include not only the CIA and military intelligence branches, but also the FBI and the Drug Enforcement Administration. The new rules, which were first reported and released in a partially redacted form by the New York Times, are designed to keep those agencies from exploiting NSA intelligence for law enforcement investigations, permitting its use only in intelligence operations.

But privacy advocates are nonetheless concerned that the NSAs more fluid sharing of its collected data will lead to the NSAs powerful spying abilities blurring into the investigation and prosecution of Americans. While the NSA previously filtered out personal information the agency didnt deem relevant before sharing it, those filters wont exist under the new rules. The privacy intrusions have also arrived, experts say, just in time for Trumps new administration to exploit them.

The fact that theyre relaxing these privacy-protective rules just as Trump is taking the reins of the surveillance state is inexplicable to me, says Nate Cardozo, an attorney with the Electronic Frontier Foundation. The changes theyre making today are widening the aperture for abuse to happen just as abuses are becoming more likely.

Privacy advocates concerns center around loopholes in the rules that allow agencies like the FBI and DEA to search the NSAs collected data forpurposessuch as investigating an agent of a foreign power. Any evidence of illegal behavior that a searcher stumbles on can be used in a criminal prosecution. That means the rule change, according to Cardozo, introduces new possibilities for law enforcement agencies like the DEA and FBI to carry out whats known as parallel construction. That maneuver involves secretly using the NSAs 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 investigations origin. The technique was the subject of an ACLU lawsuit against the Office of the Director of National Intelligence in 2012, and resulted inthe Justice Department admitting to repeatedly using the technique to hide the NSAs involvement in criminal investigations.

It used to be that if NSA itself saw the evidence of a crime, they could give a tip to the FBI, and the FBI would engage in parallel construction, says Cardozo. Now FBI will be able to get into the raw data themselves and do what they will with it.

The intelligence communitys lawyers and legal alums counter that the 12333 rule change was actually necessary ahead of Trump taking power. The change, says former NSA lawyer Susan Hennessey, makes it far more politically complicated for the Trump administration to rewrite the rules themselves, which might have allowed for even more liberal use of the NSAs data. This change, for instance, was years in the making; now finalized, amending them rules again could take years longer. For anyone concerned about possible abuses following transition, these procedures being finalized should be welcome news, Hennessey writes to WIRED. Id imagine finalizing these rules, and thus making future changes exponentially more difficult, was a very high priority for the outgoing administration.

The Office of the Director of National Intelligences general counsel Robert Litt also defended the changes in a blog post published early last year as the news rules were being considered. These procedures are not about law enforcement, but about improving our intelligence capabilities, Litt wrote. There will be no greater access to signals intelligence information for law enforcement purposes than there is today.

But the edge cases where agencies involved in law enforcement can legally search for Americans names and stumble across evidence of prosecutable criminal behavior arent sufficiently defined, says Julian Sanchez, a privacy-focused fellow at the Cato Institute. Some of those exceptions are even redacted from the declassified version of the document, he points out. We have no idea whether theres a huge loophole hiding behind those black bars, Sanchez says. It ought to be possible to characterize to the general public what the broad conditions under which someone can go searching for your communications. The chain is only as strong as the weakest link.

Beyond legal loopholes, sharing broaderaccess to unfiltered NSA data could lead to more flat-out illegal abuse, too, says the EFFs Cardozo. He points to cases of so-called LOVEINT, or love intelligence, the informal term for agents whohave, in a few rare cases, used their spying privilegesto surveil former lovers or spouses. Giving a whole bunch more peopleoutside NSA raw, unfiltered data that includes Americans communications is just asking for it, asking for more LOVEINTto happen, says Cardozo.

Keeping American surveillance agencies from surveilling Americans, Cardozo concedes, has always been in part a matter of trust that theywont break the law or abuse legal loopholes. But the untested Trump administration makes that trust more tenuous than ever before; Trump has, after all, demonstrated in private and on Twitter that he keeps an enemies list, publicly mused about wishing he had the power to hack his political opponents, and called for the investigation into the leak of an intelligence report to NBC News before even starting his term. All of that suggests a chief executive who willtest the edgesof US surveillancerulesat every possibility.

The defendersof the NSA have always said, yes these are powerful tools that could be abused in the wrong hands, but we trust thepeople in charge, says Cardozo. Now its hard to disagree more strongly. We dont trust the people who are about to take the reins of the NSA, the intelligence community, the Justice Department, to use these tools responsibly.

Link:
NSA Loosens Its Privacy Rules Ahead of Trump Taking Office