By Andy Greenberg | 12 January 2017
WIRED — As the privacy and civil liberty community braces for Donald Trump’s impending control of US intelligence agencies like the NSA, critics have called on the 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, Obama’s Justice Department has signed off on new rules to let the NSA share more of its unfiltered intelligence with its fellow agencies—including those with a domestic law enforcement agenda.
Over the last month, Director of National Intelligence James Clapper and Attorney General Loretta Lynch signed off on changes to NSA rules that allow the agency to loosen the standards for what raw surveillance data it can hand off to the other 16 American intelligence 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 NSA’s more fluid sharing of its collected data will lead to the NSA’s powerful spying abilities blurring into the investigation and prosecution of Americans. While the NSA previously filtered out personal information the agency didn’t deem relevant before sharing it, those filters won’t exist under the new rules. The privacy intrusions have also arrived, experts say, just in time for Trump’s new administration to exploit them.
“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,” says Nate Cardozo, an attorney with the Electronic Frontier Foundation. “The changes they’re 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 NSA’s collected data for purposes such 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 what’s known as “parallel construction.” That maneuver 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. The technique was the subject of an ACLU lawsuit against the Office of the Director of National Intelligence in 2012, and resulted in the Justice Department admitting to repeatedly using the technique to hide the NSA’s involvement in criminal investigations. […]