A New Executive Order on Intelligence

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Table of Contents

Introduction
Main body
Conclusion
References

Introduction

This background paper on “A New Executive Order on Intelligence” discusses a revision to Executive Order 12333 (EO 12333) addressing one of the oversight problems. The problem to be discussed refers to the incidentally obtained information from United States persons and issues it may cause. The paper suggests changes and improvements to the Executive Order and the existing United States legislation in order to comply with the norms of a democratic society. It requires consideration by the senior United States Senator for Texas, John Cornyn.

Main body

EO 12333 serves national security purposes implying surveillance and data collection activities. According to EO 12333, data collection is aimed at “foreign powers, organizations, and persons, and their agents” for the purpose of making informed decisions on national security and defense issues (Office of the Director, 2012, p. 744). However, the Executive Order also allows incidentally obtained information that may include information from United States persons (Office of the Director, 2012, p. 746). It is worth noting that the definition of United States person implies not only U.S. citizens but also permanent resident aliens (Office of the Director, 2012, p. 752). The definition also refers to an “unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States” (Office of the Director, 2012, p. 752). It is possible to agree that cases involving incidental data collection may be subject to concern.

There are some reasons to believe that the mentioned aspect is not sufficiently regulated and restricted. The Privacy and Civil Liberties Oversight Board (PCLOB) notes that incidental collection occurs rather frequently (“Report on the surveillance,” 2014). According to the PCLOB, when collecting information from targets, information from people who are on the other side of communication is collected as well (“Report on the surveillance,” 2014). In a significant number of cases, these people may be United States persons. For regulation of such cases of incidental collection, the government is obliged to follow minimization procedures restricting the use of information about United States persons. However, according to the United States Signals Intelligence Directive SP0018 (USSID 18), the identity of a U. S. person may be revealed if it is necessary for the understanding of the foreign intelligence data (“USSID SP0018,” 2011). Thus, the effectiveness of minimization procedures may be restricted in accordance with certain documents.

In addition, the issue of incidentally obtained information for a long time has been causing debates and unrest in society resulting in public researches. For instance, in 2014, The Washington Post published an article where the existence of the MYSTIC program was revealed (Gellman & Soltani, 2014). This program allowed the NSA to collect and store the content of telephone calls. According to The New York Times, the NSA can obtain any information that serves “foreign intelligence purposes” that is a rather broad criterion (Savage, 2014, para. 30). Thus, one may conclude that controversy around that issue also proves that it requires more detailed consideration.

In order to resolve the identified problem, it is necessary to provide specific changes and improvements to the existing order. These changes may include but are not restricted by increasing privacy standards of data collection, using and storing, and narrowing some aspects and concepts of EO 12333. For instance, the definition of “foreign intelligence” may sound broad. According to EO 12333, foreign intelligence is “information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists” (Office of the Director, 2012, p. 750). The definition may imply that, for instance, a discussion referring to the relationship of the USA and a certain foreign government or discussion on a terrorist attack can be considered as foreign intelligence information. In this regard, the term may be specified in the following way “excluding information that is considered a subjective opinion and does not imply or entail actions posing a danger to national security.”

An additional and, in some way, a radical initiative may be the organization of a referendum that will allow U.S. citizens to express their opinion regarding the collection and storage of their data. As the incidental data collection may relate not only to national security issues but also to the issue of constitutional rights, this problem concerns not only the government but also each of its citizens. Thus, it is possible to agree that one of the ways may include resolving this issue with the help of the democratic process.

Making changes to the existing order or promoting more radical initiatives may have both pros and cons. The referendum, depending on its outcome, may cause such consequences as the prohibition of collecting any personal data from U. S. persons, which may limit the powers of foreign intelligence. The narrowing of the foreign intelligence term may also result in certain limitations to the government agencies actions. One may assume that the promotion of a lower level directive could help to avoid such significant consequences. However, the proposed initiatives are aimed primarily at the interests of the people, which is consistent with the values of a democratic state.

It is possible to argue that it is not necessary to take any actions to change the existing order and additionally regulate the incidentally obtained information as all fears of data collection are not justified. According to Joel (2014), the civil liberties protection officer for the Office of the Director of National Intelligence, “EO 12333 requires procedures to minimize how an agency collects, retains or disseminates U.S. person information” (para. 7). These procedures provide strict verification, establish a time frame for the storage period of information, and exclude the use of such data as names, phone numbers, and email addresses. In cases when the identity of a U. S. person is needed for foreign intelligence purposes, in reports, this person is usually identified in a generic way like a “U.S. Person 1”. Joel (2014) notes that a U. S. person identity is revealed only in a strictly limited set of cases. Thus, EO 12333 procedures minimize possible cases of violation of human rights through the use of personal data.

The government system is multi-layered, and many government agencies and departments control all data collection activities. Joel (2014) claims that intelligence agencies perform activities on national security and defense, protecting personal information, and not contradicting to American democratic processes. EO 12333 states intelligence actions are carried out in accordance with “the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law” (Office of the Director, 2012, p. 727). Thus, the government aims to protect the personal data of U. S. persons. However, it is worth noting that the refusal to make any changes to EO 12333 may entail further public disputes. It also can cause possible cases of abuse of authority by government officials such as the intentional collection of personal data from U. S. persons.

Conclusion

One may conclude that there are arguments both in favor of revising Executive Order 12333 and against taking any actions. However, the highlighted issue requires further consideration in order to make the most informed decision. When considering this issue, it is necessary to maintain a balance without contradicting the interests of national security and defense and preventing violations of the constitutional rights of U. S. persons.

References

Gellman, B., & Soltani, A. (2014). NSA surveillance program reaches ‘into the past’ to retrieve, replay phone calls. The Washington Post. Web.

Joel, A. W. (2014). The truth about Executive Order 12333. Web.

Office of the Director of National Intelligence (Ed.). (2012). Intelligence community legal reference book. Washington, DC.

Report on the surveillance program operated pursuant to section 702 of the foreign intelligence surveillance act. (2014). Web.

Savage, C. (2014). Reagan-era order on surveillance violates rights, says departing aide. The New York Times. Web.

USSID SP0018. (2011). Web.

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A New Executive Order on Intelligence

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