The Cable

Obama’s Surveillance Reform Extends Unmatched Privacy to Foreigners

U.S. surveillance reform in the aftermath of Edward Snowden's revelations haven't gone far enough, but there's one change that no spy agency in the world offers: privacy protections for foreigners.

A computer workstation bears the Nationa
Fort Meade, UNITED STATES: A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center inside the Washington suburb of Fort Meade, Maryland, intelligence gathering operation 25 January 2006 after US President George W. Bush delivered a speech behind closed doors and met with employees in advance of Senate hearings on the much-criticized domestic surveillance. AFP PHOTO/Paul J. RICHARDS (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)

Though criticized by advocates for not going far enough, an Obama administration report Tuesday on steps to protect privacy and civil liberties has nevertheless achieved at least one thing: extending to foreigners the same protections available to Americans.

The report on surveillance reform, issued by the Office of the Director of National Intelligence (ODNI), banned U.S. spy agencies from disseminating information about foreigners to other countries’ intelligence agencies without considering their privacy.

“Intelligence community personnel are now specifically required to consider the privacy interests of non-U.S. persons when drafting and disseminating intelligence,” the report said.

The report on surveillance reform also said that U.S. intelligence agencies last year obtained secret court permissions to seize phone records in 164 cases where they had sufficient suspicion to seek such approvals. The number of targets tracked last year fell from the 423 queried by intelligence agencies in 2013, according to data released by the intelligence.

Following former government contractor Edward Snowden’s revelations in 2013 that U.S. spy agencies were snooping in on emails and phone calls of foreigners, including several heads of state, President Barack Obama in January 2014 said U.S. intelligence agencies must protect the privacy of foreigners on par with that of Americans.

“You can’t simply say, ‘Oh, this is not a U.S. person’ and disseminate his or her personal information,” the ODNI’s top lawyer, Bob Litt, told reporters. Instead, Litt said, officials must examine a non-citizen’s information and determine if releasing it is essential for foreign intelligence purposes.

The decision to give equal privacy protections to foreigners is unprecedented in the annals of global spying, said David Medine, chairman of the Privacy and Civil Liberties Oversight Board, an independent U.S. agency charged with protecting such rights.

“There’s no country on the planet that has gone this far to improve the treatment of non-citizens in government surveillance,” Medine said. “That alone is remarkable after the events of the last year and half because in most countries non-citizens are fair game” for spying.

Still, Medine and other privacy advocates criticized the Obama administration for not dismantling the bulk phone and other data collection programs allowed under U.S. law. Documents that Snowden smuggled out of intelligence agencies before leaving the United States in 2013 showed that the programs collected billions of phone and Internet records from users around the world every day.

While the report shows efforts being taken by the National Security Agency and other spy agencies to bolster protections, “the proposed reforms do no more than tinker around the edges,” said Neema Singh Guliani, legal counsel at the American Civil Liberties Union.

The administration is continuing with “troubling mass surveillance policies, despite mounting evidence that many of these programs are ineffective,” she said.

White House officials say the president cannot outlaw the bulk data collection program without congressional action. Legislation to amend the law and provide intelligence agencies with other ways of collecting information was shelved by the Senate last year after passing the House. Lawmakers now say they plan to reintroduce the bill and get it passed before current law expires by the end of May.

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