Don’t Blur Lines between National Security and Law Enforcement
If you face criminal charges on American soil, you’re supposed to enjoy certain protections under the U.S. Constitution. Ordinary criminal investigations are subject to court oversight, warrant requirements, and rules governing how evidence is gathered. But new changes to foreign surveillance practices could blur the lines between national security and law enforcement, rendering many of those protections weaker — if not worthless.
In late February, the New York Times reported that the White House and the Office of the Director of National Intelligence (ODNI) are, in secret, developing new procedures under Executive Order 12333 to share raw data collected by the National Security Agency (NSA) with law enforcement agencies.
At first glance, this may look benign. After all, why should it matter to American citizens and residents whether their local police departments gets access to foreign surveillance data? That info shouldn’t have an impact on domestic criminal investigations, right?
It’s not so simple. Given the nature of the Internet and cross-border data flows, wholly domestic communications between Americans are often swept up by the feds under foreign surveillance authorities, including Executive Order (EO) 12333 and Section 702 of the Foreign Intelligence Surveillance Act (FISA). These data could even include private messages and address books.
Wholly domestic communications between Americans are often swept up by the feds under foreign surveillance authorities.
While last year’s passage of the USA FREEDOM Act ended the indiscriminate, bulk collection of Americans’ phone metadata, we’re still subject to mass surveillance under foreign intelligence programs, which have yet to be reformed meaningfully.
Today, TechFreedom joined over 30 privacy-minded organizations in calling for a halt to the White House’s proposed changes to EO 12333. In a letter to top national security officials, the groups highlighted the problem with blurring the lines between the NSA and law enforcement:
Given that even wholly domestic communications today may be routed or stored overseas, such broad surveillance inevitably captures the data of millions of Americans. Sharing such information with U.S. law enforcement agencies would allow them to circumvent the strict, constitutionally mandated rules of evidence gathering that govern ordinary criminal investigations. The ongoing but largely obscured practice of parallel construction, whereby information gathered for national security purposes is laundered through domestic law enforcement while concealing its origins and manufacturing a new discovery history, undermines the important role that Courts play in policing the bounds of our Constitution and could become a more common occurrence under these new procedures.
Allowing law enforcement to use information obtained without a warrant against criminal defendants is troubling enough, but these changes to EO 12333 could also further damage our reputation abroad. Since the Snowden leaks, our government hasn’t done much to repair its international image when it comes to mass surveillance. Congress’s failure to reform foreign surveillance practices damages both our relationships with foreign governments and American tech companies’ competitiveness in international markets.
At a minimum, the White House and ODNI should release the 21-page draft policy referenced by the New York Times in its report, so that civil society, the American public, and other stakeholders can offer comment.
