President Tweaks the Rules on Data Collection
WASHINGTON — A year after President Obama ordered modest changes in how the nation’s intelligence agencies collect and hold data on Americans and foreigners, the administration will announce new rules requiring intelligence analysts to delete private information they may incidentally collect about Americans that has no intelligence purpose, and to delete similar information about foreigners within five years.
The new rules to be announced Tuesday will also institutionalize a regular White House-led review of the National Security Agency’s monitoring of foreign leaders. Until the disclosures in the early summer of 2013 by Edward J. Snowden, the former N.S.A. contractor whose trove of intelligence documents is still leaking into public view, there was no continuing White House assessment of whether the intelligence garnered from listening to scores of leaders around the world was worth the potential embarrassment if the programs became public.
Mr. Obama publicly ordered the end of the monitoring of Chancellor Angela Merkel of Germany, saying he had known nothing about the effort — an admission that revealed the White House was not reviewing N.S.A. activities the way, for example, it annually reviews covert actions around the world by the C.I.A. The timing of the announcement about the new review process comes the week before Ms. Merkel is scheduled to visit the White House, where a long-debated arrangement for greater intelligence sharing between the countries is expected to be discussed.
Mr. Obama has never said whom, beyond Ms. Merkel, he took off the list of foreign leaders whose conversations are monitored, but it appeared that programs in Mexico and Brazil continued, while several dozen leaders have been removed.
“There’s now a process in place that the National Security Council runs,” said one senior official. But the results of that process — especially the names of leaders whom the White House plans to keep monitoring — will remain secret.
In its announcement, the administration will also make modest changes in the use of national security letters, a disputed law enforcement program that Mr. Obama declined to terminate. In national security-related cases, the F.B.I. uses the letters to obtain information from companies, including telephone records or the names of subscribers. Unlike a subpoena, no judge is involved; the F.B.I. issues the letters by itself, usually requiring that the recipients never disclose the letters’ existence.
In the new rules, “the F.B.I. will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years” after the opening of an investigation, the administration will announce, or at the close of the investigations. But an exception can be made if a midlevel F.B.I. official offers a written justification for continued secrecy.
Some of the biggest changes Mr. Obama discussed in his speech at the Justice Department on Jan. 17, 2014, remain incomplete. The government, for example, still engages in the “bulk collection” of information about all telephone calls made to or from the United States because the nation’s telecommunications companies are not yet willing — or technologically ready — to hold on to it themselves, with a system that would give the government access if a court order is obtained. Officials say they do not know how long it will be before the government gets out of the business of collecting the “metadata” about all calls.
“The companies are saying if you want us to do it, you must compel us to do it,” one senior intelligence official said. “So we need to compel them,” a process that will require congressional action. The deadline for that action is June 1; after that, the government’s current authority to collect telephone “metadata” — phone numbers, dates and times, for example — will expire. Mr. Obama is counting on help from Republicans, who have been more enthusiastic about renewing the existing law than have members of Mr. Obama’s own party. But the recent spate of terrorist attacks, including the killings in Paris last month, have begun to swing the pendulum in Congress away from restrictions on the intelligence agencies and back toward allowing them more freedom.
Other issues remain unresolved. Inside the government, debate has broken out about a number of recommendations made to the president more than a year ago by his own Review Group on Intelligence and Communications Technologies, made up of five academics and former intelligence officials who took a detailed look at the N.S.A.
Decisions remain to be made, for example, on whether the government will accede to the review group’s insistence that the intelligence agencies support stronger encryption of data to protect against hacking — at a moment when the F.B.I. and many intelligence officials are protesting that new encryption technologies used by Apple for its iPhones and other firms are making it all but impossible to decode the communications of suspected criminals or terrorists. Mr. Obama is expected to make decisions on those issues in the coming weeks.
In his speech last year, Mr. Obama said for the first time that he would try to extend to foreigners some of the same privacy protections extended to Americans, partly a response to protests in Europe about the widespread collection of information revealed in the Snowden disclosures. But the president was vague about the specifics.
As described by administration officials, the protections being extended to foreigners are modest.
For example, if the conversation of an American citizen is picked up during foreign surveillance, and that “incidental” collection is “determined not to be relevant to foreign intelligence,” the content of the American’s conversation or email must be deleted immediately, the official said.
But if the person is a foreigner, the data can be held for up to five years. Then it must be deleted, except if other rules that would also apply to American citizens allow the agencies to hold on to it longer.
The new rules would also allow foreigners to go to American courts to block the misuse of private information that may have been transferred from a foreign government to the F.B.I. or other law enforcement agencies. But a foreigner whose conversations were swept up by the N.S.A., for example, would not be able to seek redress in the courts, officials said.