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Overview of Proposals to Reform Signals Intelligence Programs in Today’s Speech by the President

In today’s speech on Signals Intelligence Programs, President Obama outlined a number of “concrete and substantial reforms that [the] Administration intends to adopt administratively or will seek to codify with Congress.”  Despite the President’s description of these reforms being “concrete,” many of the proposals are admittedly broad and often left to Congress, the Attorney General, or other member of the Administration is the job of sorting out much of the details; and when evaluating proposals and reforms such as these, it’s important to remember that the devil will most certainly be in the details.  Nevertheless, today’s speech is an important juncture in the ongoing debate surrounding intelligence reform.  The full text of the speech, in case you missed it, is available here.

To help sort the substance of the speech from the rhetoric and to get us to the meat and potatoes of the proposals, I’ve outlined below a quick, but complete, recap of all the reforms announced by the President and included excerpts of the relative portions of his remarks:

“I have approved a new presidential directive for our signals intelligence activities, at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances; our trade and investment relationships, including the concerns of America’s companies; and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis, so that our actions are regularly scrutinized by my senior national security team.”

  • Annual declassification review of certain FISC opinions with broad policy implications: 

“Going forward, I am directing the Director of National Intelligence, in consultation with the Attorney General, to annually review – for the purpose of declassification – any future opinions of the Court with broad privacy implications, and to report to me and Congress on these efforts.”

  • Establishment of a panel of “outside advocates” for certain cases before the FISC:

“To ensure that the Court hears a broader range of privacy perspectives, I am calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.”

  • Additional protections for activities under Section 702:

“Specifically, I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702.”

  • Additional transparency for NSLs:

“. . . we can – and should – be more transparent in how government uses this authority. I have therefore directed the Attorney General to amend how we use National Security Letters so this secrecy will not be indefinite, and will terminate within a fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public more information than ever before about the orders they have received to provide data to the government.”

  • New approach to Section 215 bulk collection that would include (i) only allowing for “two-hop” analysis instead of the current three; (ii) requiring FISC approval to query the database (with an emergency exception); and (iii) developing new approach for storage of metadata database:

“Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three. And I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

“Next, I have instructed the intelligence community and Attorney General to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address without the government holding this meta-data. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28. During this period, I will consult with the relevant committees in Congress to seek their views, and then seek congressional authorization for the new program as needed.”

  • Specifying certain limits on overseas collection:

“. . . the new presidential directive that I have issued today will clearly prescribe what we do, and do not do, when it comes to our overseas surveillance. To begin with, the directive makes clear that the United States only uses signals intelligence for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary people. I have also made it clear that the United States does not collect intelligence to suppress criticism or dissent, nor do we collect intelligence to disadvantage people on the basis of their ethnicity, race, gender, sexual orientation, or religious beliefs. And we do not collect intelligence to provide a competitive advantage to U.S. companies, or U.S. commercial sectors.”

“In terms of our bulk collection of signals intelligence, U.S. intelligence agencies will only use such data to meet specific security requirements: counter-intelligence; counter-terrorism; counter-proliferation; cyber-security; force protection for our troops and allies; and combating transnational crime, including sanctions evasion.”

  • Developing additional protections for non-US persons overseas:

“Moreover, I have directed that we take the unprecedented step of extending certain protections that we have for the American people to people overseas. I have directed the DNI, in consultation with the Attorney General, to develop these safeguards, which will limit the duration that we can hold personal information, while also restricting the use of this information.”

  • Changes to certain government organization surrounding SIGNIT:

“Finally, to make sure that we follow through on these reforms, I am making some important changes to how our government is organized. The State Department will designate a senior officer to coordinate our diplomacy on issues related to technology and signals intelligence. We will appoint a senior official at the White House to implement the new privacy safeguards that I have announced today. I will devote the resources to centralize and improve the process we use to handle foreign requests for legal assistance, keeping our high standards for privacy while helping foreign partners fight crime and terrorism.”

  •  Comprehensive review of big data and privacy:

“I have also asked my Counselor, John Podesta, to lead a comprehensive review of big data and privacy. This group will consist of government officials who—along with the President’s Council of Advisors on Science and Technology—will reach out to privacy experts, technologists and business leaders, and look at how the challenges inherent in big data are being confronted by both the public and private sectors; whether we can forge international norms on how to manage this data; and how we can continue to promote the free flow of information in ways that are consistent with both privacy and security.”

 

 

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About the Author

is the Managing Editor of Just Security. Follow him on twitter @thomasdearnest.