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The Trump Administration Is Hiding a Crucial Report on NSA Spying Practices

NSA Building at night
NSA Building at night
Ashley Gorski,
Senior Staff Attorney,
ACLU National Security Project
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July 12, 2018

Despite requests from a senator and the European Union, the Trump administration is refusing to make public an important report by a federal privacy watchdog about how the U.S. government handles personal information swept up by its surveillance.

The public has a right to know what the government does with the vast troves of private data that American intelligence agencies collect in the course of their spying. On Thursday, we filed a Freedom of Information Act request demanding the release of the report, significant portions of which are unclassified.

The report is from the Privacy and Civil Liberties Oversight Board, which was created by Congress to be an independent, bipartisan agency. Its mission is to help ensure that national security laws and programs don’t infringe on individual rights. As part of that mission, the board has issued several significant oversight reports addressing government surveillance. While we have not always agreed with the conclusions of these reports, they have played a vital role in the democratic process by educating the public about the powerful spying tools at the government’s disposal. In the wake of Edward Snowden’s revelations about the National Security Agency’s illegal mass surveillance programs, the board’s work informed the public debate by prompting the declassification of additional details about these secret programs.

Recognizing the board’s importance as a mechanism for transparency, Congress required that it make its reports public to the greatest extent possible. But now the Trump administration is wrongly trying to keep its findings secret.

The report we’re seeking concerns the implementation of President Obama’s 2014 policy directive on government spying and the handling of personal information, which can include emails, chats, text messages, and more. The directive recognized that “all persons have legitimate privacy interests in the handling of their personal information.” While Obama’s policy changes left much to be desired, they did include improvements, including some very modest protections for the handling of personal information of non-American citizens abroad. The directive also encouraged the Privacy and Civil Liberties Oversight Board to provide the president with a report assessing how the new policies were carried out.

In December 2016, the board delivered its report to the White House and congressional intelligence committees. Two months later, Sen. Ron Wyden (D-Ore.) wrote a letter to Office of the Director of National Intelligence, urging it to make public the unclassified portions of the report and to declassify the rest of it as soon as possible. European Union officials and representatives have also called for the report’s release.

In response, the Trump administration has refused to release any of the report, even with redactions, citing executive privilege. By shrouding the report in secrecy, the administration is depriving the public of the ability to understand how the government is applying Obama’s efforts to impose even minimal privacy safeguards on highly controversial NSA spying.

The European Union has said that the disclosure of the report is important for its annual assessment of the central U.S.-EU data-sharing agreement, known as Privacy Shield. That agreement allows American tech firms operating in Europe to easily transfer data to the United States.

Just last week, the European Parliament called for the suspension of the Privacy Shield agreement because the United States is not complying with EU law. Suspending the agreement would be devastating for Silicon Valley. One of parliament’s many concerns was Trump’s claim of “presidential privilege” over the board’s report, which likely addresses the implementation of privacy protections for Europeans.

In addition to keeping the report secret, the Trump administration appears to be undermining the Privacy and Civil Liberties Oversight Board’s proper functioning. Since February 2017, four of the board’s five positions have been vacant, preventing it from doing much of its work to investigate government overreach. Three new members have been nominated but are still awaiting Senate confirmation after many months. Even if all three were confirmed, that would leave the board imbalanced, with three Republicans and only one Democrat. In this scenario, the board’s rules require that the next member not be a Republican, but Trump has made no nomination.

Given the vacancies — and the fact that the current nominee for chair of the board is on the record supporting unconstitutional surveillance programs — there are now serious questions regarding whether the board will act as an independent check on surveillance abuses by the executive branch in the future.

Despite questions about the future of the Privacy and Civil Liberties Oversight Board, its reports have shed much-needed light on the government’s surveillance practices. By hiding the report that we’re demanding today, the Trump administration is not only undermining the board’s purpose — it’s also undermining democratic accountability.

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