By Kyle Becker
The White House has issued an executive order that removes the safeguards against spying on American citizens without a warrant.
“The Executive Order of October 7, 2022 (Enhancing Safeguards for United States Signals Intelligence Activities), establishes enhanced safeguards for United States signals intelligence activities that supersede the safeguards for personal information collected through signals intelligence established by Presidential Policy Directive 28 of January 17, 2014 (Signals Intelligence Activities) (PPD-28),” the executive order states.
“The Executive Order establishes enhanced safeguards in recognition that signals intelligence activities must be conducted in a manner that takes into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information,” the order continues. “In addition, signals intelligence activities present the potential for national security damage if improperly disclosed. Therefore, it is essential to maintain the policy process refined by section 3 of PPD-28 and supplemented by the classified annex to PPD-28, under which national security policymakers consider carefully the value of signals intelligence activities to our national interests and the risks entailed in conducting those activities.”
The executive order then states the provisions to be revoked:
Section 1. Revocation. PPD-28 is hereby revoked except for sections 3 and 6 of that directive and the classified annex to that directive, which remain in effect.
Section 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The following is the text of PPD 18 that are being revoked, as was issued under former President Barack Obama. Section 1:
Section 1. Principles Governing the Collection of Signals Intelligence.
Signals intelligence collection shall be authorized and conducted consistent with the following principles:
(a) The collection of signals intelligence shall be authorized by statute or Executive Order, proclamation, or other Presidential directive, and undertaken in accordance with the Constitution and applicable statutes, Executive Orders, proclamations, and Presidential directives.
(b) Privacy and civil liberties shall be integral considerations in the planning of U.S. signals intelligence activities. The United States shall not collect signals intelligence for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion. Signals intelligence shall be collected exclusively where there is a foreign intelligence or counterintelligence purpose to support national and departmental missions and not for any other purposes.
(c) The collection of foreign private commercial information or trade secrets is authorized only to protect the national security of the United States or its partners and allies. It is not an authorized foreign intelligence or counterintelligence purpose to collect such information to afford a competitive advantage to U.S. companies and U.S. business sectors commercially.
(d) Signals intelligence activities shall be as tailored as feasible. In determining whether to collect signals intelligence, the United States shall consider the availability of other information, including from diplomatic and public sources. Such appropriate and feasible alternatives to signals intelligence should be prioritized.
Sec. 2. Limitations on the Use of Signals Intelligence Collected in Bulk.
Locating new or emerging threats and other vital national security information is difficult, as such information is often hidden within the large and complex system of modern global communications. The United States must consequently collect signals intelligence in bulk in certain circumstances in order to identify these threats. Routine communications and communications of national security interest increasingly transit the same networks, however, and the collection of signals intelligence in bulk may consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value. The United States will therefore impose new limits on its use of signals intelligence collected in bulk. These limits are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.
In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.
The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.
The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.
Sec. 4. Safeguarding Personal Information Collected Through Signals Intelligence.
All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information. U.S. signals intelligence activities must, therefore, include appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides.
(a) Policies and Procedures. The DNI, in consultation with the Attorney General, shall ensure that all elements of the IC establish policies and procedures that apply the following principles for safeguarding personal information collected from signals intelligence activities. To the maximum extent feasible consistent with the national security, these policies and procedures are to be applied equally to the personal information of all persons, regardless of nationality:
i. Minimization. The sharing of intelligence that contains personal information is necessary to protect our national security and advance our foreign policy interests, as it enables the United States to coordinate activities across our government. At the same time, however, by setting appropriate limits on such sharing, the United States takes legitimate privacy concerns into account and decreases the risks that personal information will be misused or mishandled. Relatedly, the significance to our national security of intelligence is not always apparent upon an initial review of information: intelligence must be retained for a sufficient period of time for the IC to understand its relevance and use it to meet our national security needs. However, long-term storage of personal information unnecessary to protect our national security is inefficient, unnecessary, and raises legitimate privacy concerns. Accordingly, IC elements shall establish policies and procedures reasonably designed to minimize the dissemination and retention of personal information collected from signals intelligence activities.
- Dissemination: Personal information shall be disseminated only if the dissemination of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.
- Retention: Personal information shall be retained only if the retention of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333 and shall be subject to the same retention periods as applied to comparable information concerning U.S. persons. Information for which no such determination has been made shall not be retained for more than 5 years, unless the DNI expressly determines that continued retention is in the national security interests of the United States.
Additionally, within 180 days of the date of this directive, the DNI, in coordination with the Attorney General, the heads of other elements of the IC, and the heads of departments and agencies containing other elements of the IC, shall prepare a report evaluating possible additional dissemination and retention safeguards for personal information collected through signals intelligence, consistent with technical capabilities and operational needs.
ii. Data Security and Access. When our national security and foreign policy needs require us to retain certain intelligence, it is vital that the United States take appropriate steps to ensure that any personal information contained within that intelligence is secure. Accordingly, personal information shall be processed and stored under conditions that provide adequate protection and prevent access by unauthorized persons, consistent with the applicable safeguards for sensitive information contained in relevant Executive Orders, proclamations, Presidential directives, IC directives, and associated policies. Access to such personal information shall be limited to authorized personnel with a need to know the information to perform their mission, consistent with the personnel security requirements of relevant Executive Orders, IC directives, and associated policies. Such personnel will be provided appropriate and adequate training in the principles set forth in this directive. These persons may access and use the information consistent with applicable laws and Executive Orders and the principles of this directive; personal information for which no determination has been made that it can be permissibly disseminated or retained under section 4(a)(i) of this directive shall be accessed only in order to make such determinations (or to conduct authorized administrative, security, and oversight functions).
iii. Data Quality. IC elements strive to provide national security policymakers with timely, accurate, and insightful intelligence, and inaccurate records and reporting can not only undermine our national security interests, but also can result in the collection or analysis of information relating to persons whose activities are not of foreign intelligence or counterintelligence value. Accordingly, personal information shall be included in intelligence products only as consistent with applicable IC standards for accuracy and objectivity, as set forth in relevant IC directives. Moreover, while IC elements should apply the IC Analytic Standards as a whole, particular care should be taken to apply standards relating to the quality and reliability of the information, consideration of alternative sources of information and interpretations of data, and objectivity in performing analysis.
iv. Oversight. The IC has long recognized that effective oversight is necessary to ensure that we are protecting our national security in a manner consistent with our interests and values. Accordingly, the policies and procedures of IC elements, and departments and agencies containing IC elements, shall include appropriate measures to facilitate oversight over the implementation of safeguards protecting personal information, to include periodic auditing against the standards required by this section.
The policies and procedures shall also recognize and facilitate the performance of oversight by the Inspectors General of IC elements, and departments and agencies containing IC elements, and other relevant oversight entities, as appropriate and consistent with their responsibilities. When a significant compliance issue occurs involving personal information of any person, regardless of nationality, collected as a result of signals intelligence activities, the issue shall, in addition to any existing reporting requirements, be reported promptly to the DNI, who shall determine what, if any, corrective actions are necessary. If the issue involves a non-United States person, the DNI, in consultation with the Secretary of State and the head of the notifying department or agency, shall determine whether steps should be taken to notify the relevant foreign government, consistent with the protection of sources and methods and of U.S. personnel.
(b) Update and Publication. Within 1 year of the date of this directive, IC elements shall update or issue new policies and procedures as necessary to implement section 4 of this directive, in coordination with the DNI. To enhance public understanding of, and promote public trust in, the safeguards in place to protect personal information, these updated or newly issued policies and procedures shall be publicly released to the maximum extent possible, consistent with classification requirements.
(c) Privacy and Civil Liberties Policy Official. To help ensure that the legitimate privacy interests all people share related to the handling of their personal information are appropriately considered in light of the principles in this section, the APNSA, the Director of the Office of Management and Budget (OMB), and the Director of the Office of Science and Technology Policy (OSTP) shall identify one or more senior officials who will be responsible for working with the DNI, the Attorney General, the heads of other elements of the IC, and the heads of departments and agencies containing other elements of the IC, as appropriate, as they develop the policies and procedures called for in this section.
(d) Coordinator for International Diplomacy. The Secretary of State shall identify a senior official within the Department of State to coordinate with the responsible departments and agencies the United States Government’s diplomatic and foreign policy efforts related to international information technology issues and to serve as a point of contact for foreign governments who wish to raise concerns regarding signals intelligence activities conducted by the United States.
Sec. 5. Reports.
(a) Within 180 days of the date of this directive, the DNI shall provide a status report that updates me on the progress of the IC’s implementation of section 4 of this directive.
(b) The Privacy and Civil Liberties Oversight Board is encouraged to provide me with a report that assesses the implementation of any matters contained within this directive that fall within its mandate.
(c) Within 120 days of the date of this directive, the President’s Intelligence Advisory Board shall provide me with a report identifying options for assessing the distinction between metadata and other types of information, and for replacing the “need‑to-share” or “need-to-know” models for classified information sharing with a Work‑Related Access model.
(d) Within 1 year of the date of this directive, the DNI, in coordination with the heads of relevant elements of the IC and OSTP, shall provide me with a report assessing the feasibility of creating software that would allow the IC more easily to conduct targeted information acquisition rather than bulk collection.
As Will Chamberlain, Senior Counsel at the Internet Accountability Project and the Article 3 Project, put it on Twitter: “Holy cow what a Friday news dump. Joe Biden just rescinded executive branch rules that prevent spying on American citizens.”
The Biden administration is demolishing Americans’ civil liberties before our very eyes.
Source: Becker News