An Agenda for The President’s Intelligence Surveillance Review
On August 9, President Obama, among other things, pledged to create an independent group of high level, outside experts to review intelligence and communications technologies, and to consider how to maintain public trust, while protecting against abusive use of those technologies. The President also said the expert group would examine how intelligence surveillance impacts our foreign policy given that more and more information about that surveillance is becoming public. He said the group would issue a report by the end of the year on how surveillance programs impact security, privacy and foreign policy.
On August 12, the President ordered the Director of National Intelligence, James Clapper, to establish a Review Group on Intelligence and Communications Technologies to “assess whether, in light of advancement in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.” As others have pointed out somehow, the President’s oral charge to the Review Group on Friday to issue a report on how surveillance programs impact privacy got lost in translation when reduced to paper on Monday.
Nonetheless, the President’s Review Group could serve a beneficial function and issue a useful report. This is especially true if it takes a holistic, critical look at the enormous growth in U.S. intelligence surveillance since the September 11 attacks. New technology enables mass collection and analysis of highly revealing metadata that is protected under weak statutory standards and that may be unprotected under the Fourth Amendment. Indeed, a simple recommendation from the Review Group that the Administration anticipate the evolution of the law toward more privacy protection for metadata and adjust accordingly would be helpful. The Review Group’s assessment of whether use of particular collection capabilities maintains the public’s trust must include privacy considerations: the public won’t trust broad collection of personal information for intelligence reasons if it unnecessarily impinges on privacy.
The Review Group’s assessment of foreign policy considerations should go well beyond whether spying on friendly governments does more to damage foreign relations than it does to increase security. Instead, it should include an assessment of whether the NSA, through surveillance activities conducted in the U.S. under Section 702 of FISA, unnecessarily infringes on the human rights interests of non-U.S. persons who are abroad. NSA surveillance has put at risk America’s global Internet freedom agenda, which promotes the right of people around the world to use the Internet to speak freely and without fear of unwarranted government surveillance. It puts at risk the U.S. advocacy of the multi-stakeholder approach of Internet governance, which undergirds that agenda. Finally, it puts at risk the business interests of U.S. companies that are trying to sell cloud-based services abroad. The President’s Review Group should make recommendations that give confidence to people, businesses and governments around the world that the U.S. is sincere when it preaches Internet freedom. Recommendations regarding more transparency as well as limits on the breadth of the information collected would serve this goal.
We are hopeful that the Review Group will be independent of the intelligence agencies whose conduct it will review. While the President will select its members, DNI Clapper formally appoints those members and presumably will detail staff to support the Review Group’s work. The White House should explain clearly how the Review Group will maintain independence though having these ties to the intelligence apparatus. The proof will be in the recommendations the Review Group issues by the December 15, 2013 deadline that the President set. If the President’s Review Group merely rubber stamps policies already in place in the intelligence community, its recommendations won’t be credited and instead, concerns about its independence will prove valid.
We expect recommendations from the Review Group, regardless of who is appointed, to account for the parameters that the President set in his speech. In particular, do not expect the President’s Review Group to recommend an end of the Section 215 Internet telephony metadata program that the President defended on August 9. Ending that program will be up to Congress, and it should act soon instead of waiting for the Review Group to issue its recommendations. We also hope the Review Group’s work won’t delay the Administration’s conveyance to Congress of baseline consumer privacy legislation, or the consideration in Congress of reform of the Electronic Communications Privacy Act, neither of which involve the intelligence surveillance the Review Group will examine. Ultimately, we want recommendations that will contribute to the already robust public discussion about NSA surveillance.