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Friday, December 27, 2013

Liberty and Security in a Changing World: Report and Recommendation of the President's Review Group

Liberty and Security in a Changing World

Report and Recommendation of the President's Review Group on Intelligence and Communications Technologies
Transmittal Letter 


Dear Mr. President: 

We are honored to present you with the Final Report of the Review Group on Intelligence and Communications Technologies. 

 Consistent with your memorandum of August 27, 2013, our recommendations are designed to protect our national security and advance our foreign policy while also 
respecting our longstanding commitment to privacy and civil liberties, recognizing our need to maintain the public trust (including the trust of our friends and allies abroad), and reducing the risk of unauthorized disclosures. 

We have emphasized the need to develop principles designed to create strong foundations for the future. 

 Although we have explored past and current practices, and while that exploration has informed our recommendations, this Report should not be taken as a general review of, 
or as an attempt to provide a detailed assessment of, those practices. Nor have we generally engaged budgetary questions (although some of our recommendations would have budgetary implications). 

We recognize that our forty-six recommendations, developed over a relatively short period of time, will require careful assessment by a wide range of relevant officials, with close reference to the likely consequences. 

Our goal has been to establish broad understandings and principles that  can provide helpful orientation during the coming months, years, and decades. 

We are hopeful that this Final Report might prove helpful to you, to Congress, to the American people, and to leaders and citizens of diverse nations during continuing explorations of these important questions. 

Richard A. Clarke 
Michael J. Morell 
Geoffrey R. Stone 
Cass R. Sunstein 
Peter Swire 

Preface 

On August 27, 2013, the President announced the creation of the Review Group on Intelligence and Communications Technologies. 

The immediate backdrop for our work was a series of disclosures of classified information involving foreign intelligence collection by the National Security Agency. 

The disclosures revealed intercepted collections that occurred inside and outside of the United States and that included the communications of United States persons and legal permanent residents, as well as non-United States persons located outside the United States. 

Although these disclosures and the responses and concerns of many people in the United States and abroad have informed this Report, we have focused more broadly on the creation of sturdy foundations for the future, safeguarding (as our title suggests) liberty and security in a rapidly changing world. 

Those rapid changes include unprecedented advances in information and communications technologies; increased globalization of trade, investment, and information flows; and fluid national security threats against which the American public rightly expects its government to provide protection.

With this larger context in mind, we have been mindful of significant recent changes in the environment in which intelligence collection takes place. 

For example, traditional distinctions between “foreign” and 
“domestic” are far less clear today than in the past, now that the same communications devices, software, and networks are used globally by  friends and foes alike. 

These changes, as well as changes in the nature of the threats we face, have implications for the right of privacy, our strategic relationships with other nations, and the levels of innovation and information-sharing that underpin key elements of the global economy. 

In addressing these issues, the United States must pursue multiple and often competing goals at home and abroad. In facing these challenges, the United States must take into account the full range of interests and values that it is pursuing, and it must communicate these goals to the 
American public and to key international audiences. 

 These goals include: 

Protecting The Nation Against Threats to Our National Security. 

The ability of the United States to combat threats from state rivals, terrorists, and weapons proliferators depends on the acquisition of foreign intelligence information from a broad range of sources and through a variety of methods.

In an era increasingly dominated by technological advances in communications technologies, the United States must continue to collect signals intelligence globally in order to assure the safety of our citizens at home and abroad and to help protect the safety of our friends, our allies, and the 
many nations with whom we have cooperative relationships. 
Promoting Other National Security and Foreign Policy Interests. 

Intelligence is designed not only to protect against threats but also to safeguard a wide range of national security and foreign policy interests, including counterintelligence, counteracting the international elements of  organized crime, and preventing drug trafficking, human trafficking, and 
mass atrocities. 
Protecting the Right to Privacy. 

The right to privacy is essential to a free and self-governing society. The rise of modern technologies makes it 

all the more important that democratic nations respect people’s fundamental right to privacy, which is a defining part of individual security and personal liberty. 
Protecting Democracy, Civil Liberties, and the Rule of Law. 

Free debate within the United States is essential to the long-term vitality of American democracy and helps bolster democracy globally. 

Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, 
and the core processes of democratic self-government. 

All parts of the government, including those that protect our national security, must be subject to the rule of law. 
Promoting Prosperity, Security, and Openness in a Networked World. 

The United States must adopt and sustain policies that support technological innovation and collaboration both at home and abroad. 

Such policies are central to economic growth, which is promoted in turn by economic freedom and spurring entrepreneurship. 

For this reason, the United States must continue to establish and strengthen international norms of Internet freedom and security. 
Protecting Strategic Alliances. 

The collection of intelligence must be undertaken in a way that preserves and strengthens our strategic relationships. 

We must be respectful of those relationships and of the 

leaders and citizens of other nations, especially those with whom we share interests, values, or both. 

The collection of intelligence should be undertaken in a way that recognizes the importance of cooperative relationships with other nations and that respects the legitimate privacy interests and the dignity of those outside our borders. 

The challenge of managing these often competing goals is daunting. But it is a challenge that the nation must meet if it is to live up to its promises to its citizens and to posterity. 

Executive Summary

Overview

The national security threats facing the United States and our allies are numerous and significant, and they will remain so well into the future. 

These threats include international terrorism, the proliferation of weapons of mass destruction, and cyber espionage and warfare. A robust foreign intelligence collection capability is essential if we are to protect ourselves against such threats. 

Because our adversaries operate through the use of 
complex communications technologies, the National Security Agency, with its impressive capabilities and talented officers, is indispensable to keeping our country and our allies safe and secure. 

At the same time, the United States is deeply committed to the protection of privacy and civil liberties—fundamental values that can be and at times have been eroded by excessive intelligence collection. 

After careful consideration, we recommend a number of changes to our intelligence collection activities that will protect these values without undermining what we need to do to keep our nation safe. 

Principles

 We suggest careful consideration of the following principles: 

1. The United States Government must protect, at once, two different forms of security: national security and personal privacy.  

In the American tradition, the word “security” has had multiple meanings. In contemporary parlance, it often refers to national security or homeland security. 

One of the government’s most fundamental responsibilities is to protect this form of security, broadly understood.

 At the same time, the idea of security refers to a quite different and equally fundamental value, captured in the Fourth Amendment to the United States Constitution: 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ” (emphasis added). 
Both forms of security must be protected. 

2. The central task is one of risk management; multiple risks are involved, and all of them must be considered. 
When public officials acquire foreign intelligence 
information, they seek to reduce risks, above all risks to national security. 
The challenge, of course, is that multiple risks are involved. Government must consider all of those risks, not a subset, when it is creating sensible safeguards.
 In addition to reducing risks to national security, public officials must consider four other risks: 

• Risks to privacy; 
• Risks to freedom and civil liberties, on the Internet and   elsewhere; 
• Risks to our relationships with other nations; and 
• Risks to trade and commerce, including international       commerce

3. The idea of “balancing” has an important element of truth, but it is also inadequate and misleading. 

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. 

 The suggestion has an important element of truth. 
But some safeguards are not subject to balancing at all. 

 In a free society, public officials should never engage in 
surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an 
unfair competitive advantage; or to benefit or burden members of groups defined in terms of 
religion, ethnicity, race, and gender. 

4. The government should base its decisions on a careful analysis of consequences, including both benefits and costs (to the extent feasible). 

In many areas of public policy, officials are increasingly insistent on the need for careful analysis of the consequences of their decisions, and on the importance of relying not on intuitions and anecdotes, but on evidence 
and data. 

 Before they are undertaken, surveillance decisions should depend (to the extent feasible) on a careful assessment of the anticipated consequences, including the full range of relevant risks. 

Such decisions should also be subject to continuing scrutiny, including retrospective analysis, to ensure that any errors are corrected. 





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