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Limiting Surveillance of non-US Citizens with Presidential Policy Directive Twenty-Eight

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In response to the Snowden leaks, President Obama and Congress imposed a series of reforms including Presidential Policy Directive Twenty-Eight. Although the directive was created to promote transparency and limit surveillance operations, the changes are largely ornamental do not reflect a significant desire to change current surveillance practices.

In June 2013, Edward Snowden released classified documents detailing U.S. government surveillance programs domestic and abroad. The leak publicized a range of information on the National Security Agency’s (NSA) telephone metadata program, including the surveillance of foreign citizens and world leaders.[1] Sensitive files released to the The Guardian revealed U.S. surveillance operations “targeted” a total of thirty-eight embassies and diplomatic missions in New York and Washington, and monitored thirty-five world leaders’ telephones.[2]

By October 2013, Snowden reports revealed the NSA had intercepted millions of telephone conversations from the French government, monitored the e-mail traffic of an Israeli prime minister, and eavesdropped on German Chancellor Angela Merkel’s cellular phone.[3] World leaders, including Merkel, expressed outrage and shock at the revelation that the United States “spied” on allied leaders and governments to such an extensive degree. The United States suffered initial diplomatic fallout, and some feared the international backlash would cost U.S. companies billions in lost revenue and market share.[4] In a response to these fears and the growing indignation of the American and European population, President Obama and Congress directed a review of the intelligence programs and initiated policy reforms for intelligence collection.[5] On January 27th 2014, President Obama introduced Presidential Policy Directive Twenty-Eight (PPD-28) which outlined protections given to non-U.S. citizens in relation to intelligence collection.[6]

The directive “articulates principals to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes.”[7] PPD-28 adds internal governmental procedures such as requiring the heads of departments and agencies involved in surveillance to review on an annual basis whether the government should maintain the programs, and creates a “Coordinator for International Diplomacy” to serve as a point of contact between foreign governments raising surveillance concerns and the intelligence community. [8] The directive requires that the collection be lawful and “as tailored as feasible.” It stipulates non-U.S. citizens’ information must be deleted after five years unless the information is “relevant to, among other things, an authorized foreign intelligence requirement.”[9] PPD-28 limits bulk signals intelligence to detecting and countering six types of actual threats the United States including: (1) Espionage; (2) terrorism; (3) weapons of mass destruction; (4) cybersecurity; (5) threats to U.S. or allied military personnel; and (6) transnational criminal threats, and it specifically excludes economic espionage.[10] While the language of the directive may appear to bulk up protections given to non-U.S. citizens, in reality the changes made are primarily cosmetic and the directive largely formalizes current surveillance practices.[11]

The broad range of topics of which surveillance is allowed, in combination with the limited number and degree of institution reform, reveals PPD-28 was likely created as a way to ease diplomatic tension, and was not intended to massively limit surveillance operations abroad. In a speech given by President Obama on January 17th, 2014, the pliable nature of the directive was further revealed when the President promised that the United States would not eavesdrop on the heads of state of U.S. allies and friends, “unless there is a compelling national security purpose.” [12]

The United States may feel little pressure to create strong reform policies as many wondered if the indignant European responses were primarily for show. Intelligence researchers argue that it is as an open secret that even close allies spy on each other. [13] “Allies spy on each other because they don’t have identical interests,” says Jeffrey Richelson, author of The US Intelligence Community. “There are very few allies that are so close that there’s no point in collecting intelligence.” [14] The lack of ramification other than public denunciation may constitute an implicit application of the international law doctrine ‘tu quoque,’ which can be understood to mean a nation has no standing to complain about a practice in which it itself engages.[15]

The question as to why the United States instituted a reform with little impact may be simply answered because it could. The United States benefits from current surveillance practices, and until the International community responds in a strong and unified attempt to compel the United States to change its practices, it is unlikely to do.

 

 

 

 

 

 

 

1 Daniel Severson, American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change, 56 Harvard L. Rev. 466 (2015)
2 Edward Snowden: Leaks that exposed US spy programme, (17 Jan. 2014), http://www.bbc.com/news/world-us-canada-23123964
3 James Glanz, Andrew Lehren, N.S.A Spied on Allied, Aid Groups, and Buisnesses, (20 Dec. 2013) http://www.nytimes.com/2013/12/21/world/nsa-dragnet-included-allies-aid-groups-and-business-elite.html?_r=0&module=ArrowsNav&contentCollection=World&action=keypress&region=FixedLeft&pgtype=article
4 See Footnote 2
5 Daniel Severson, American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change, 56 Harvard L. Rev. 466 (2015)
6 See Footnote 5
7 Presidential Policy Directive 28 available at https://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities
8 Id.
9 Id.
10 See Footnote 5
11 Daniel Severson, American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change, 56 Harvard L. Rev. 466 (2015)
12Steve Holland, et all. Obama bans spying on leaders of U.S. allies, scales back NSA program, 17 Jan. 2014, available at www.reuters.com/article/2014/01/18/us-usa-security-obama-idUSBREA0G0JI20140118#R2Mj5Lx3TuzSgPp4.97
13 US spies on ‘the entire globe’ experts say, 25 Oct. 2013, available at US spies on ‘the entire globe’ experts say, 25 Oct. 2013, available at http://www.bbc.com/news/magazine-24627187
14 Id.
15 An Assessment of International Legal Issues in Information Operations, Department of Defense, May 1999, available at http://www.au.af.mil/au/awc/awcgate/dod-io-legal/dod-io-legal.pdf


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