Privacy Advisor

PCLOB to U.S. Intelligence: Update Data-Gathering Guidelines Now

August 26, 2013

By Sam Pfeifle
Publications Director

News that NSA analysts knowingly violated surveillance authority over the past decade, and were in fact disciplined for it, is just the latest information drawing attention to U.S. intelligence data-gathering activities. That attention has been growing increasingly uncomfortable for the Obama administration since the first revelations from whistleblower Edward Snowden earlier this summer.

That scrutiny now looks to be leading to active changes. In its first major missive since its resurrection earlier this year, the Privacy and Civil Liberties Oversight Board has sent a letter to U.S. Attorney General Eric Holder and Director of National Intelligence James Clapper telling them the board believes that “key policies and procedures addressing privacy and civil liberties should be kept up to date to take into account new developments including technological advancements.”

As part of its investigation into NSA surveillance and other U.S. government surveillance activities, the board “learned that key procedures that form the guidelines to protect ‘information concerning United States persons’ have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology.”

The PCLOB thus requests that Holder and Clapper update those procedures and deliver to the board by Oct. 31 an “agency-by-agency schedule establishing a time-frame for updating each agency’s guidelines.”

If that isn’t enough impetus for change at the NSA and other agencies, there are other forces at work as well. While the NSA over-reaching in the past has been described as “inadvertent,” the NSA has revealed that there have been, indeed, willful and deliberate violates of NSA policy, and that disciplinary actions have been taken.

After similar willful breaking of the law at the IRS earlier this year, we saw bills introduced that would actually make political targeting at the IRS a criminal offense, with jail sentences of up to five years and fines of up to $5,000 imposed, in addition to termination, though the Taxpayer Nondiscrimination & Protection Act of 2013, for example, has not yet exited committee. Further, “a total of five executives are no longer in the positions they held at the time that the TIGTA report was published,” according to acting IRS Director Daniel Werfel’s report in June.

Sen. Dianne Feinstein (D-CA) told the AP that it amounts to roughly one violation a year over the last decade, and that she is now “reviewing each of these incidents in detail.” It’s unclear what actions will be taken, if any, after that review is completed.

The New York Times also has a report out of Berlin that the continuing leaks of NSA activities is seriously straining U.S.-German political ties. The paper has learned that “top German officials traveled to Washington this month to press an unusual demand: to negotiate a new formal agreement with the United States that neither side will spy on the other.” This follows a report in the German paper Der Spiegel that revealed American eavesdropping at the United Nations.

However, according to the report, Chancellor Merkel’s political opponents have yet to make hay out of the NSA revelations and the general public is as of yet not upset with the way she’s handled the situation, according to opinion polls.

Also in Europe, following threatening from the GCHQ, the intelligence arm of the British government, The Guardian, which has been the conduit for most of Edward Snowden’s leaks, has reached an agreement with The New York Times to share the information it has been given, due to stronger press protections in the United States than in the UK.

Further pressure may be applied to the Obama administration with the first of the papers’ co-reported stories see the light of day in the coming weeks.

Finally, there is plenty of evidence that the NSA-privacy story is reaching deeper into the public consciousness. As just one example, the University of Texas’ Robert S. Strauss Center for International Security and Law has proposed a workshop for the popular music and technology conference SXSW called, “After Snowden: Privacy, Surveillance, and the NSA.

If you’d like to vote to see the panel discussion picked up for the conference, you can click here (though a log-in/registration is required for voting).

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