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Liberty and Security in a Changing World

December 18, 2013 at 4:41 PM ET by Richard Clarke, Michael Morell, Geoffrey Stone, Cass Sunstein and Peter Swire
Summary: 
The President’s Review Group on Intelligence and Communications Technologies releases its report entitled “Liberty and Security in a Changing World,” which sets forth forty-six recommendations designed to protect national security and advance our foreign policy while respecting our longstanding commitment to privacy and civil liberties.

On December 18, the President’s Review Group on Intelligence and Communications Technologies released its report entitled “Liberty and Security in a Changing World.” The comprehensive report, unclassified in its entirety, sets forth forty-six recommendations designed to protect national security and advance our foreign policy while respecting our longstanding commitment to privacy and civil liberties. The Review Group’s product recognizes the need to maintain the public trust – including the trust of our friends and allies abroad – and proposes steps to reduce the risk of unauthorized disclosures.

In particular, the report highlights the need to develop principles designed to create sturdy foundations for the future, safeguarding liberty and security amidst a changing world. The recommendations emphasize risk management and the need to balance a wide range of potential consequences, including both costs and benefits, in considering potential reforms.

  • Limit Bulk Collection – The report supports legislation to terminate the storage of bulk telephony meta-data by the government under Section 215 of the Foreign Intelligence Surveillance Act.
  • Increase Transparency – The report urges Congress to enact legislation authorizing telephone, Internet, and other providers to disclose publicly general information about orders they receive directing them to provide information to the government.  In addition, the government should regularly publicly disclose general data about the orders it has issued in programs whose existence is unclassified.
  • Enhance the Privacy of Non-US Persons – The report sets forth several steps that the government should take to protect the privacy of non-US persons, including extending protections of the Privacy Act to non-US persons.
  • Organizational Reform – The report recommends a series of organizational changes.
    • White House Review – We recommend that the President create a new process to approve sensitive intelligence activities, including policy makers responsible for US economic policy.
    • Foreign Intelligence Surveillance Court (FISC) – Congress should create the position of Public Interest Advocate to represent the interests of privacy and civil liberties before the Court, increase the transparency of FISC decisions, and change the process by which judges are appointed.
    • Privacy and Civil Liberties Oversight Board (PCLOB) – We urge the creation of a newly chartered, strengthened, and independent Civil Liberties and Privacy Protection Board (CLPP Board) to replace the PCLOB, with authority to review government activity relating to foreign intelligence rather than only for counterterrorism.
    • National Security Agency (NSA) – With respect to NSA, we propose that the Director position should be Senate-confirmed, civilians should be eligible to hold the position, and US Cyber Command should be separated from the NSA so that a single person would no longer wear a dual hat.  In addition, the report recommends that the Information Assurance Directorate (IAD) be made into a separate agency with the Department of Defense, reporting to the cyber policy element within the Office of the Secretary of Defense.
  • Global Communications Technology – The report recommends that the US Government fully support and not undermine efforts to create strong global encryption standards, and take other measures to prompt prosperity, security, and openness on the Internet.
  • Insider Threats – The report recommends a series of steps to reduce the risks associated with “insider threats.”  These include modifications to both personnel vetting and to network security.  It also recommends the institution of a Work-Related Access approach to the dissemination of classified information and implementation of Information Rights Management software.

The report emphasizes throughout that the central task is one of managing a wide assortment of risks.  The Review Group is hopeful that the recommendations made here might prove helpful in striking the right balance.  Free nations must protect themselves, and nations that protect themselves must remain free.