Mimesis Law
19 April 2021

New Surveillance Rules Pit Law Enforcement vs. National Security

January 16, 2017 (Fault Lines) — The Obama Administration released a new set of rules on how electronic surveillance data relating to United States citizens and residents can be shared between the National Security Agency (the country’s primary signals intelligence service) and the government’s other 15 intelligence agencies.

The purpose of the procedures is to enable IC elements to conduct their national security missions more effectively by providing them with access to unevaluated or unminimized (i.e., “raw”) signals intelligence (SIGINT) collected by the NSA, subject to appropriate privacy protections for information about U.S. persons.  […] The procedures provide an important mechanism for enhancing information sharing, integration, and collaboration in the IC.  In addition, the procedures are consistent with recommendations of the 9/11 Commission and other reviews of the Intelligence Community.

In their own terms, this makes sense. The whole point of having multiple intelligence agencies is to have different sets of eyes, with different training and perspectives, focusing on their own areas of expertise to make sense of whatever information is coming in. It doesn’t make a lot of sense of to have the same agency responsible for figuring out the specs of the newest Russian fighter jet also predicting the outcome of the next election in Indonesia.

But this is a complicated issue, because it exists in a gray area between national security and criminal law. The difference between the two is rooted in a difference in objectives. It’s axiomatic that when it comes to criminal law, the government’s objective is not simply a conviction but that justice be done. And “justice” in the criminal context is not simply the conviction, incarceration, or execution of the defendant; but also that the individual rights of the defendant are protected.

On the other hand, the objectives of national security have little to do with individual rights but rather with the collective need for national security. Phrased differently, the criminal justice system focuses on means, whereas national security focuses on ends.

Both have their place. If Elliot Ness had simply walked up to Al Capone on Wacker Drive and blown him away the minute he got off the train at Union Station, Ness would have been every bit the murderer Capone was. Likewise, it would have been equally grotesque if the U.S. Pacific Fleet had to go to court to get approval to ambush Yamamoto.

Supposedly, the new rules do not apply to purely domestic communications:

The NSA’s SIGINT mission is focused on the collection of foreign communications; therefore, a recipient IC element should rarely encounter a “domestic communication.”  A domestic communication is defined by the procedures as a “communication where the sender and all intended recipients are located in the United States and that was acquired under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”

So far, so good. But what if domestic communication does end up in the NSA’s net?

The procedures provide that recipient IC elements “may not use a query, identifier, or other selection term that is intended to select domestic communications.”  If, despite this limitation, a domestic communication is inadvertently retrieved, the procedures require the recipient IC element to destroy it promptly upon recognition unless the Attorney General determines that the contents of the communication indicate a threat of death or serious bodily harm to any person. (Emphasis added.)

In their own terms, this makes sense. The new rules actually do seem be to making an effort to strike a balance between privacy rights and national security. The problem is that the rules are only as effective as the people implementing them.

How likely is it that the Attorney General is going to order one of the intelligence agencies to get rid of information that agency says it needs? And if an intelligence agency that also has law enforcement responsibilities, such as the FBI or DEA, happens across such information, what do they do with it? Section VIII of the new rules says

A recipient IC element may not use, or permit the use of, raw SIGINT made available under these Procedures, or any information derived from such information, in any legal or administrative proceeding without the prior approval of NSA’s OGC [Office of General Counsel]. (Emphasis added.)

Essentially, the entire set of rules has one part of the Executive Branch (like the Attorney General or the NSA) ruling on what other parts of the Executive Branch (like the FBI) are allowed to hold on to. There’s no judicial oversight, no checks and balances, and no due process.

Except due process is a goal of the legal system, not national security. The best solution would be would be to completely separate the two functions. This would probably mean splitting the FBI into two agencies, one focusing on criminal investigations and the other on national security and counter-intelligence, removing the DEA from the intelligence community entirely, with similar changes for other agencies serving both functions. Along with this, a law clearly stating that any information gathered by intelligence agencies, and the fruits thereof, is inadmissible in court. This isn’t a perfect solution, but what the government knows is less important than what it’s allowed to do with it.

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  • Jim Tyre
    16 January 2017 at 1:51 pm - Reply

    These rules apply only to collection and subsequent use of information authorized by Executive Order 12333, not to any other NSA program. EO 12333 was initially issued by Reagan, but has been modified many times. The most recent modification, to which these rules apply, was by George W. Bush.

    Whether the rules make sense depend in part on when 4A protections first attach. Through DOJ, NSA contends that mere collection, or even computerized minimization, does not trigger 4A, 4A does not apply until the data is seen by human eyes. Many others (including an EFF team of which I’m a part) contend that 4A is triggered at the instant of collection. If we’re right, then much of the information was collected unconstitutionally, which cannot be cured by rules on when and how the information can be disseminated to other agencies.