[Editor’s Note: The author composed this analytic essay while serving as General Counsel for the Director of National Intelligence.]
There has been a lot of speculation about the content of proposed procedures that are being drafted to authorize the sharing of unevaluated signals intelligence. While the procedures are not yet in final form, it would be helpful to clarify what they are and are not. In particular, these procedures are not about law enforcement, but about improving our intelligence capabilities.
These procedures are called for by Section 2.3 of Executive Order 12333, as amended in 2008. They respond to the widely recognized lesson learned from the 9/11 attacks, that intelligence should not be “stovepiped” by individual agencies but should be shared responsibly within the Intelligence Community. Thus, Executive Order 12333 generally allows intelligence information to be shared within the Intelligence Community, in order to allow agencies to determine whether that information is relevant to their mission, but imposes additional restrictions on the sharing of signals intelligence, requiring that that be done only in accord with procedures established by the Director of National Intelligence in coordination with the Secretary of Defense, and approved by the Attorney General.
These procedures will thus not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes.
They will require individual elements of the Intelligence Community to establish a justification for access to signals intelligence consistent with the foreign intelligence or counterintelligence mission of the element. And finally, they will require Intelligence Community elements, as a condition of receiving signals intelligence, to apply to signals intelligence information the kind of strong protections for privacy and civil liberties, and the kind of oversight, that the National Security Agency currently has.
In other words, the same kind of protections for individual privacy that exists for signals intelligence today will carry forward when that signals intelligence is shared pursuant to these procedures. There will be no greater access to signals intelligence information for law enforcement purposes than there is today. These procedures will only ensure that other elements of the Intelligence Community will be able to make use of this signals intelligence if it is relevant to their intelligence mission.
These procedures are in the final stages of development and approval now, and we hope to have them finalized and released to the public soon.