U.S. Calls for Limits on Foreign Communication Intercepts

U.S. intelligence agencies should adopt safeguards that limit how they use information they collect on foreigners, including purging material that isn’t relevant to national security after five years, the Office of the Director of National Intelligence said.

The “mere fact” that information relates to a foreigner isn’t sufficient reason to permanently retain it or share it with other government agencies, according to a 10-page report to be released today by Director of National Intelligence James Clapper. From now on, to be kept or disseminated, information should relate to an authorized intelligence operation, as defined by President Barack Obama and his national security advisers.

Intercepting e-mails, phone calls and other data -- known as signals intelligence -- is permissible “only for authorized foreign intelligence and counterintelligence purposes, and to safeguard information obtained through such means from unauthorized access or disclosure,” according to the report.

“It’s a significant development that the U.S. acknowledges there is a privacy right that foreigners hold,” Michael German, a former Federal Bureau of Investigation special agent and a fellow at the Brennan Center for Justice at the New York University School of Law, said in a phone interview.

Still Collecting

The changes, though, don’t impose any new restrictions on how much or what kinds of information U.S. intelligence agencies can collect on Americans or foreigners. Privacy advocates and other critics are seeking more severe restraints on extensive government surveillance programs that intercept phone, Internet and other communications.

Many “loopholes” allow intelligence agencies to retain data on U.S. citizens, and now those also will apply to foreigners’ information, German said. “The problem is clearly that U.S. person protections have become so weak.”

The new measures are a response to a domestic and international backlash against U.S. communications spying exposed by former U.S. contractor Edward Snowden.

A rift emerged between the Obama administration and other countries when the classified documents released by Snowden revealed that the U.S. had spied on at least 35 foreign leaders, including the personal phones of Brazilian President Dilma Rousseff and German Chancellor Angela Merkel.

Presidential Directive

After the revelations of National Security Agency spying heightened tensions between the U.S. and other governments, Obama issued a January directive requiring new limits on how intercepted foreign communications are handled.

The report released today identifies recommendations to implement that directive, and says intelligence agencies are on track to adopt them by Jan. 17.

The existing definitions of signals intelligence could allow a spy agency “to permanently retain or to disseminate any information about any activity of any foreign person,” according to the report. While the new safeguards aim to prevent that, it’s not clear how much difference they’ll make.

For example, the report says foreigners’ personal information should be disseminated only if comparable material about U.S. citizens can be distributed.

Minimal Difference

In practice, data about U.S. citizens can be disseminated under a long list of subjects, Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution in Washington, wrote in a Jan. 20 blog posting in response to Obama’s directive.

“The agencies are now required to have minimization procedures that forbid dissemination of non-U.S. person data unless there’s some valid reason to want to disseminate it,” Wittes wrote. “Since good intelligence agencies aren’t in the business of disseminating information for fun or for smears or just because, this actually won’t necessitate much change in practice.”

Although the report calls on intelligence agencies not to retain foreigners’ data for more than five years, it also would permit the director of national intelligence to grant extensions for another five years.

“There will be times when the five-year retention period is insufficient,” according to the report. “For example, certain terrorist or other networks of foreign intelligence interest may develop over decades, not years.”

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