LIBERTY AND SECURITY

I N A CHANGING WORLD

Report and Recommendations of

The President’s Review Group on Intelligence 

and Communications Technologies

12 December 2013
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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 
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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 
3 

Acknowledgements 

The Review Group would like to thank the many people who supported 

our efforts in preparing this Report. A number of people were formally 

assigned to assist the Group, and all performed with professionalism, hard 

work, and good cheer. These included Brett Freedman, Kenneth Gould, 

and other personnel from throughout the government. We thank as well 

the many other people both inside and outside of the government who 

have contributed their time and energy to assisting in our work. 
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Table of Contents 

Preface 

Executive Summary 

Recommendations 

Chapter I: Principles 

Chapter II: Lessons of History 

A. The Continuing Challenge 

B. The Legal Framework as of September 11, 2001 

C. September 11 and its Aftermath 

D. The Intelligence Community 

Chapter III: Reforming Foreign Intelligence Surveillance Directed at 

United States Persons

A. Introduction 

B. Section 215: Background 

C. Section 215 and “Ordinary” Business Records 
6 

D. National Security Letters 

E. Section 215 and the Bulk Collection of Telephony Meta-data 

1. The Program 

2. The Mass Collection of Personal Information 

3. Is Meta-data Different? 

F. Secrecy and Transparency 

Chapter IV: Reforming Foreign Intelligence Surveillance Directed at 

Non-United States Persons 

A. Introduction 

B. Foreign Intelligence Surveillance and Section 702 

C. Privacy Protections for United States Persons Whose 

Communications are Intercepted Under Section 702 

D. Privacy Protections for Non-United States Persons 

Chapter V: Determining What Intelligence Should Be Collected and 

How 

A. Priorities and Appropriateness 

B. Monitoring Sensitive Collection 

C. Leadership Intentions 
7 

D. Cooperation with Our Allies 

Chapter VI: Organizational Reform in Light of Changing 

Communications Technology 

A. Introduction 

B. The National Security Agency 

1. “Dual-Use” Technologies: The Convergence of Civilian 

Communications and Intelligence Collection 

2. Specific Organizational Reforms 

C. Reforming Organizations Dedicated to the Protection of Privacy and 

Civil Liberties 

D. Reforming the FISA Court 

Chapter VII: Global Communications Technology: Promoting 

Prosperity, Security, and Openness in a Networked World 

A. Introduction 

B. Background: Trade, Internet Freedom, and Other Goals 

 1. International Trade and Economic Growth 

 2. Internet Freedom 
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3. Internet Governance and Localization Requirements 

C. Technical Measures to Increase Security and User Confidence 

D. Institutional Measures for Cyberspace 

E. Addressing Future Technological Challenges 

Chapter VIII. Protecting What We Do Collect 

A. Personnel Vetting and Security Clearances 

1. How the System Works Now 

2. How the System Might be Improved 

3. Information Sharing 

B. Network Security 

1. Executive Order 13578 

2. Physical and Logical Separation 

C. Cost-Benefit Analysis and Risk Management 

Conclusion 

Appendix A: The Legal Standards for Government Access to 

Communications 

Appendix B: Overview of NSA Privacy Protections Under FAA 702 
9 

Overview of NSA Privacy Protections Under EO 12333 

Appendix C: US Intelligence: Multiple Layers of Rules and Oversight 

Appendix D: Avenues for Whistle-blowers in the Intelligence 

Community 

Appendix E: US Government Role in Current Encryption Standards 

Appendix F: Review Group Briefings and Meetings 

Appendix G: Glossary 
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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 
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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 
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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 
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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. 
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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. 
15 

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. 
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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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Surveillance of US Persons 

With respect to surveillance of US Persons, we recommend a series of 

significant reforms. Under section 215 of the Foreign Intelligence 

Surveillance Act (FISA), the government now stores bulk telephony metadata, understood as information that includes the telephone numbers that 

both originate and receive calls, time of call, and date of call. (Meta-data 

does not include the content of calls.). We recommend that Congress 

should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for 

national security purposes. 

In our view, the current storage by the government of bulk meta-data 

creates potential risks to public trust, personal privacy, and civil liberty. We 

recognize that the government might need access to such meta-data, which 

should be held instead either by private providers or by a private third 

party. This approach would allow the government access to the relevant 

information when such access is justified, and thus protect national 

security without unnecessarily threatening privacy and liberty. Consistent 

with this recommendation, we endorse a broad principle for the future: as 

a general rule and without senior policy review, the government should 

not be permitted to collect and store mass, undigested, non-public personal 

information about US persons for the purpose of enabling future queries 

and data-mining for foreign intelligence purposes. 

We also recommend specific reforms that will provide Americans 

with greater safeguards against intrusions into their personal domain. We 
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endorse new steps to protect American citizens engaged in 

communications with non-US persons. We recommend important 

restrictions on the ability of the Foreign Intelligence Surveillance Court 

(FISC) to compel third parties (such as telephone service providers) to 

disclose private information to the government. We endorse similar 

restrictions on the issuance of National Security Letters (by which the 

Federal Bureau of Investigation now compels individuals and 

organizations to turn over certain otherwise private records), 

recommending prior judicial review except in emergencies, where time is 

of the essence. 

We recommend concrete steps to promote transparency and 

accountability, and thus to promote public trust, which is essential in this 

domain. Legislation should be enacted requiring information about 

surveillance programs to be made available to the Congress and to the 

American people to the greatest extent possible (subject only to the need to 

protect classified information). We also recommend that legislation should 

be enacted authorizing telephone, Internet, and other providers to disclose 

publicly general information about orders they receive directing them to 

provide information to the government. Such information might disclose 

the number of orders that providers have received, the broad categories of 

information produced, and the number of users whose information has 

been produced. In the same vein, we recommend that the government 

should publicly disclose, on a regular basis, general data about the orders it 

has issued in programs whose existence is unclassified. 
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Surveillance of Non-US Persons 

Significant steps should be taken to protect the privacy of non-US 

persons. In particular, any programs that allow surveillance of such 

persons even outside the United States should satisfy six separate 

constraints. They: 

1) must be authorized by duly enacted laws or properly authorized 

executive orders; 

2) must be directed exclusively at protecting national security interests 

of the United States or our allies; 

3) must not be directed at illicit or illegitimate ends, such as the theft of 

trade secrets or obtaining commercial gain for domestic industries; 

4) must not target any non-United States person based solely on that 

person’s political views or religious convictions; 

5) must not disseminate information about non-United States persons 

if the information is not relevant to protecting the national security 

of the United States or our allies; and 

6) must be subject to careful oversight and to the highest degree of 

transparency consistent with protecting the national security of the 

United States and our allies. 

We recommend that, in the absence of a specific and compelling 

showing, the US Government should follow the model of the Department 

of Homeland Security and apply the Privacy Act of 1974 in the same way 

to both US persons and non-US persons. 
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Setting Priorities and Avoiding Unjustified or Unnecessary 

Surveillance 

To reduce the risk of unjustified, unnecessary, or excessive 

surveillance in foreign nations, including collection on foreign leaders, we 

recommend that the President should create a new process, requiring 

highest-level approval of all sensitive intelligence requirements and the 

methods that the Intelligence Community will use to meet them. This 

process should identify both the uses and the limits of surveillance on 

foreign leaders and in foreign nations. 

We recommend that those involved in the process should consider 

whether (1) surveillance is motivated by especially important national 

security concerns or by concerns that are less pressing and (2) surveillance 

would involve leaders of nations with whom we share fundamental values 

and interests or leaders of other nations. With close reference to (2), we 

recommend that with a small number of closely allied governments, 

meeting specific criteria, the US Government should explore 

understandings or arrangements regarding intelligence collection 

guidelines and practices with respect to each others’ citizens (including, if 

and where appropriate, intentions, strictures, or limitations with respect to 

collections). 
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Organizational Reform 

We recommend a series of organizational changes. With respect to 

the National Security Agency (NSA), we believe that the Director should be 

a Senate-confirmed position, with civilians eligible to hold that position; 

the President should give serious consideration to making the next Director 

of NSA a civilian. NSA should be clearly designated as a foreign 

intelligence organization. Other missions (including that of NSA’s 

Information Assurance Directorate) should generally be assigned 

elsewhere. The head of the military unit, US Cyber Command, and the 

Director of NSA should not be a single official. 

We favor a newly chartered, strengthened, independent Civil 

Liberties and Privacy Protection Board (CLPP Board) to replace the Privacy 

and Civil Liberties Oversight Board (PCLOB). The CLPP Board should 

have broad authority to review government activity relating to foreign 

intelligence and counterterrorism whenever that activity has implications 

for civil liberties and privacy. A Special Assistant to the President for 

Privacy should also be designated, serving in both the Office of 

Management and Budget and the National Security Staff. This Special 

Assistant should chair a Chief Privacy Officer Council to help coordinate 

privacy policy throughout the Executive branch. 

With respect to the FISC, we recommend that Congress should create 

the position of Public Interest Advocate to represent the interests of privacy 

and civil liberties before the FISC. We also recommend that the 

government should take steps to increase the transparency of the FISC’s 
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decisions and that Congress should change the process by which judges are 

appointed to the FISC. 

Global Communications Technology 

Substantial steps should be taken to protect prosperity, security, and 

openness in a networked world. A free and open Internet is critical to both 

self-government and economic growth. The United States Government 

should reaffirm the 2011 International Strategy for Cyberspace. It should 

stress that Internet governance must not be limited to governments, but 

should include all appropriate stakeholders, including businesses, civil 

society, and technology specialists. 

The US Government should take additional steps to promote 

security, by (1) fully supporting and not undermining efforts to create 

encryption standards; (2) making clear that it will not in any way subvert, 

undermine, weaken, or make vulnerable generally available commercial 

encryption; and (3) supporting efforts to encourage the greater use of 

encryption technology for data in transit, at rest, in the cloud, and in 

storage. Among other measures relevant to the Internet, the US 

Government should also support international norms or agreements to 

increase confidence in the security of online communications. 

For big data and data-mining programs directed at communications, 

the US Government should develop Privacy and Civil Liberties Impact 

Assessments to ensure that such efforts are statistically reliable, costeffective, and protective of privacy and civil liberties. 
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Protecting What We Do Collect 

We recommend a series of steps to reduce the risks associated with 

“insider threats.” A governing principle is plain: Classified information 

should be shared only with those who genuinely need to know. We 

recommend specific changes to improve the efficacy of the personnel 

vetting system. The use of “for-profit” corporations to conduct personnel 

investigations should be reduced or terminated. Security clearance levels 

should be further differentiated. Departments and agencies should institute 

a Work-Related Access approach to the dissemination of sensitive, 

classified information. Employees with high-level security clearances 

should be subject to a Personnel Continuous Monitoring Program. 

Ongoing security clearance vetting of individuals should use a riskmanagement approach and depend on the sensitivity and quantity of the 

programs and information to which individuals are given access. 

The security of information technology networks carrying classified 

information should be a matter of ongoing concern by Principals, who 

should conduct an annual assessment with the assistance of a “second 

opinion” team. Classified networks should increase the use of physical and 

logical separation of data to restrict access, including through Information 

Rights Management software. Cyber-security software standards and 

practices on classified networks should be at least as good as those on the 

most secure private-sector enterprises. 
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Recommendations 

Recommendation 1 

We recommend that section 215 should be amended to authorize 

the Foreign Intelligence Surveillance Court to issue a section 215 order 

compelling a third party to disclose otherwise private information about 

particular individuals only if: 

 (1) it finds that the government has reasonable grounds to believe 

that the particular information sought is relevant to an 

authorized investigation intended to protect “against 

international terrorism or clandestine intelligence activities” and 

 (2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 

Recommendation 2 

We recommend that statutes that authorize the issuance of National 

Security Letters should be amended to permit the issuance of National 

Security Letters only upon a judicial finding that: 

(1) the government has reasonable grounds to believe that the 

particular information sought is relevant to an authorized 

investigation intended to protect “against international 

terrorism or clandestine intelligence activities” and 

(2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 
25 

Recommendation 3 

We recommend that all statutes authorizing the use of National 

Security Letters should be amended to require the use of the same 

oversight, minimization, retention, and dissemination standards that 

currently govern the use of section 215 orders. 

Recommendation 4 

We recommend that, as a general rule, and without senior policy 

review, the government should not be permitted to collect and store all 

mass, undigested, non-public personal information about individuals to 

enable future queries and data-mining for foreign intelligence purposes. 

Any program involving government collection or storage of such data 

must be narrowly tailored to serve an important government interest. 

Recommendation 5 

We recommend that legislation should be enacted that terminates 

the storage of bulk telephony meta-data by the government under 

section 215, and transitions as soon as reasonably possible to a system in 

which such meta-data is held instead either by private providers or by a 

private third party. Access to such data should be permitted only with a 

section 215 order from the Foreign Intellience Surveillance Court that 

meets the requirements set forth in Recommendation 1. 

Recommendation 6 

We recommend that the government should commission a study of 

the legal and policy options for assessing the distinction between metadata and other types of information. The study should include 
26 

technological experts and persons with a diverse range of perspectives, 

including experts about the missions of intelligence and law 

enforcement agencies and about privacy and civil liberties. 

Recommendation 7 

We recommend that legislation should be enacted requiring that 

detailed information about authorities such as those involving National 

Security Letters, section 215 business records, section 702, pen register 

and trap-and-trace, and the section 215 bulk telephony meta-data 

program should be made available on a regular basis to Congress and 

the American people to the greatest extent possible, consistent with the 

need to protect classified information. With respect to authorities and 

programs whose existence is unclassified, there should be a strong 

presumption of transparency to enable the American people and their 

elected representatives independently to assess the merits of the 

programs for themselves. 

Recommendation 8 

We recommend that: 

(1) legislation should be enacted providing that, in the use of 

National Security Letters, section 215 orders, pen register and 

trap-and-trace orders, 702 orders, and similar orders directing 

individuals, businesses, or other institutions to turn over 

information to the government, non-disclosure orders may be 

issued only upon a judicial finding that there are reasonable 

grounds to believe that disclosure would significantly threaten 
27 

the national security, interfere with an ongoing investigation, 

endanger the life or physical safety of any person, impair 

diplomatic relations, or put at risk some other similarly weighty 

government or foreign intelligence interest; 

(2) nondisclosure orders should remain in effect for no longer than 

180 days without judicial re-approval; and 

(3) nondisclosure orders should never be issued in a manner that 

prevents the recipient of the order from seeking legal counsel in 

order to challenge the order’s legality. 

Recommendation 9 

We recommend that legislation should be enacted providing that, 

even when nondisclosure orders are appropriate, recipients of National 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders issued in programs whose 

existence is unclassified may publicly disclose on a periodic basis 

general information about the number of such orders they have received, 

the number they have complied with, the general categories of 

information they have produced, and the number of users whose 

information they have produced in each category, unless the government 

makes a compelling demonstration that such disclosures would 

endanger the national security. 

Recommendation 10 

We recommend that, building on current law, the government 

should publicly disclose on a regular basis general data about National 
28 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders in programs whose 

existence is unclassified, unless the government makes a compelling 

demonstration that such disclosures would endanger the national 

security. 

Recommendation 11 

We recommend that the decision to keep secret from the American 

people programs of the magnitude of the section 215 bulk telephony 

meta-data program should be made only after careful deliberation at 

high levels of government and only with due consideration of and 

respect for the strong presumption of transparency that is central to 

democratic governance. A program of this magnitude should be kept 

secret from the American people only if (a) the program serves a 

compelling governmental interest and (b) the efficacy of the program 

would be substantially impaired if our enemies were to know of its 

existence. 

Recommendation 12 

We recommend that, if the government legally intercepts a 

communication under section 702, or under any other authority that 

justifies the interception of a communication on the ground that it is 

directed at a non-United States person who is located outside the United 

States, and if the communication either includes a United States person 

as a participant or reveals information about a United States person: 
29 

(1) any information about that United States person should be 

purged upon detection unless it either has foreign intelligence 

value or is necessary to prevent serious harm to others; 

(2) any information about the United States person may not be used 

in evidence in any proceeding against that United States person; 

(3) the government may not search the contents of communications 

acquired under section 702, or under any other authority covered 

by this recommendation, in an effort to identify 

communications of particular United States persons, except (a) 

when the information is necessary to prevent a threat of death or 

serious bodily harm, or (b) when the government obtains a 

warrant based on probable cause to believe that the United 

States person is planning or is engaged in acts of international 

terrorism. 

Recommendation 13 

We recommend that, in implementing section 702, and any other 

authority that authorizes the surveillance of non-United States persons 

who are outside the United States, in addition to the safeguards and 

oversight mechanisms already in place, the US Government should 

reaffirm that such surveillance: 

(1) must be authorized by duly enacted laws or properly authorized 

executive orders; 

(2) must be directed exclusively at the national security of the 

United States or our allies; 
30 

(3) must not be directed at illicit or illegitimate ends, such as the 

theft of trade secrets or obtaining commercial gain for domestic 

industries; and 

(4) must not disseminate information about non-United States 

persons if the information is not relevant to protecting the 

national security of the United States or our allies. 

In addition, the US Government should make clear that such 

surveillance: 

(1) must not target any non-United States person located outside of 

the United States based solely on that person’s political views or 

religious convictions; and 

 (2) must be subject to careful oversight and to the highest degree of 

transparency consistent with protecting the national security of 

the United States and our allies. 

Recommendation 14 

We recommend that, in the absence of a specific and compelling 

showing, the US Government should follow the model of the 

Department of Homeland Security, and apply the Privacy Act of 1974 in 

the same way to both US persons and non-US persons. 

Recommendation 15 

We recommend that the National Security Agency should have a 

limited statutory emergency authority to continue to track known targets 

of counterterrorism surveillance when they first enter the United States, 
31 

until the Foreign Intelligence Surveillance Court has time to issue an 

order authorizing continuing surveillance inside the United States. 

Recommendation 16 

We recommend that the President should create a new process 

requiring high-level approval of all sensitive intelligence requirements 

and the methods the Intelligence Community will use to meet them. This 

process should, among other things, identify both the uses and limits of 

surveillance on foreign leaders and in foreign nations. A small staff of 

policy and intelligence professionals should review intelligence 

collection for sensitive activities on an ongoing basis throughout the year 

and advise the National Security Council Deputies and Principals when 

they believe that an unscheduled review by them may be warranted. 

Recommendation 17 

We recommend that: 

(1) senior policymakers should review not only the requirements in 

Tier One and Tier Two of the National Intelligence Priorities 

Framework, but also any other requirements that they define as 

sensitive; 

(2) senior policymakers should review the methods and targets of 

collection on requirements in any Tier that they deem sensitive; 

and 

(3) senior policymakers from the federal agencies with 

responsibility for US economic interests should participate in 
32 

the review process because disclosures of classified information 

can have detrimental effects on US economic interests. 

Recommendation 18 

We recommend that the Director of National Intelligence should 

establish a mechanism to monitor the collection and dissemination 

activities of the Intelligence Community to ensure they are consistent 

with the determinations of senior policymakers. To this end, the Director 

of National Intelligence should prepare an annual report on this issue to 

the National Security Advisor, to be shared with the Congressional 

intelligence committees. 

Recommendation 19 

We recommend that decisions to engage in surveillance of foreign 

leaders should consider the following criteria: 

(1) Is there a need to engage in such surveillance in order to assess 

significant threats to our national security? 

(2) Is the other nation one with whom we share values and interests, 

with whom we have a cooperative relationship, and whose 

leaders we should accord a high degree of respect and deference? 

(3) Is there a reason to believe that the foreign leader may be being 

duplicitous in dealing with senior US officials or is attempting to 

hide information relevant to national security concerns from the 

US? 

(4) Are there other collection means or collection targets that could 

reliably reveal the needed information? 
33 

(5) What would be the negative effects if the leader became aware of 

the US collection, or if citizens of the relevant nation became so 

aware? 

Recommendation 20 

We recommend that the US Government should examine the 

feasibility of creating software that would allow the National Security 

Agency and other intelligence agencies more easily to conduct targeted 

information acquisition rather than bulk-data collection. 

Recommendation 21 

We recommend that with a small number of closely allied 

governments, meeting specific criteria, the US Government should 

explore understandings or arrangements regarding intelligence 

collection guidelines and practices with respect to each others’ citizens 

(including, if and where appropriate, intentions, strictures, or limitations 

with respect to collections). The criteria should include: 

(1) shared national security objectives; 

(2) a close, open, honest, and cooperative relationship between 

senior-level policy officials; and 

(3) a relationship between intelligence services characterized both 

by the sharing of intelligence information and analytic thinking 

and by operational cooperation against critical targets of joint 

national security concern. Discussions of such understandings 

or arrangements should be done between relevant intelligence 

communities, with senior policy-level oversight. 
34 

Recommendation 22 

We recommend that: 

(1) the Director of the National Security Agency should be a 

Senate-confirmed position; 

(2) civilians should be eligible to hold that position; and 

(3) the President should give serious consideration to making the 

next Director of the National Security Agency a civilian. 

Recommendation 23 

We recommend that the National Security Agency should be 

clearly designated as a foreign intelligence organization; missions other 

than foreign intelligence collection should generally be reassigned 

elsewhere. 

Recommendation 24 

We recommend that the head of the military unit, US Cyber 

Command, and the Director of the National Security Agency should not 

be a single official. 

Recommendation 25 

We recommend that the Information Assurance Directorate—a 

large component of the National Security Agency that is not engaged in 

activities related to foreign intelligence—should become a separate 

agency within the Department of Defense, reporting to the cyber policy 

element within the Office of the Secretary of Defense. 
35 

Recommendation 26 

We recommend the creation of a privacy and civil liberties policy 

official located both in the National Security Staff and the Office of 

Management and Budget. 

Recommendation 27 

 We recommend that: 

(1) The charter of the Privacy and Civil Liberties Oversight Board 

should be modified to create a new and strengthened agency, 

the Civil Liberties and Privacy Protection Board, that can oversee 

Intelligence Community activities for foreign intelligence 

purposes, rather than only for counterterrorism purposes; 

(2) The Civil Liberties and Privacy Protection Board should be an 

authorized recipient for whistle-blower complaints related to 

privacy and civil liberties concerns from employees in the 

Intelligence Community; 

(3) An Office of Technology Assessment should be created within 

the Civil Liberties and Privacy Protection Board to assess 

Intelligence Community technology initiatives and support 

privacy-enhancing technologies; and 

(4) Some compliance functions, similar to outside auditor functions 

in corporations, should be shifted from the National Security 

Agency and perhaps other intelligence agencies to the Civil 

Liberties and Privacy Protection Board. 
36 

Recommendation 28 

We recommend that: 

(1) Congress should create the position of Public Interest Advocate to 

represent privacy and civil liberties interests before the Foreign 

Intelligence Surveillance Court; 

(2) the Foreign Intelligence Surveillance Court should have greater 

technological expertise available to the judges; 

(3) the transparency of the Foreign Intelligence Surveillance Court’s 

decisions should be increased, including by instituting 

declassification reviews that comply with existing standards; and 

(4) Congress should change the process by which judges are 

appointed to the Foreign Intelligence Surveillance Court, with the 

appointment power divided among the Supreme Court Justices. 

Recommendation 29 

We recommend that, regarding encryption, the US Government 

should: 

(1) fully support and not undermine efforts to create encryption 

standards; 

(2) not in any way subvert, undermine, weaken, or make vulnerable 

generally available commercial software; and 

(3) increase the use of encryption and urge US companies to do so, in 

order to better protect data in transit, at rest, in the cloud, and in 

other storage. 
37 

Recommendation 30 

We recommend that the National Security Council staff should 

manage an interagency process to review on a regular basis the activities 

of the US Government regarding attacks that exploit a previously 

unknown vulnerability in a computer application or system. These are 

often called “Zero Day” attacks because developers have had zero days 

to address and patch the vulnerability. US policy should generally move 

to ensure that Zero Days are quickly blocked, so that the underlying 

vulnerabilities are patched on US Government and other networks. In 

rare instances, US policy may briefly authorize using a Zero Day for high 

priority intelligence collection, following senior, interagency review 

involving all appropriate departments. 

Recommendation 31 

We recommend that the United States should support international 

norms or international agreements for specific measures that will 

increase confidence in the security of online communications. Among 

those measures to be considered are: 

(1) Governments should not use surveillance to steal industry 

secrets to advantage their domestic industry; 

(2) Governments should not use their offensive cyber capabilities 

to change the amounts held in financial accounts or otherwise 

manipulate the financial systems; 
38 

(3) Governments should promote transparency about the number 

and type of law enforcement and other requests made to 

communications providers; 

(4) Absent a specific and compelling reason, governments should 

avoid localization requirements that (a) mandate location of 

servers and other information technology facilities or (b) prevent 

trans-border data flows. 

Recommendation 32 

We recommend that there be an Assistant Secretary of State to lead 

diplomacy of international information technology issues. 

Recommendation 33 

We recommend that as part of its diplomatic agenda on 

international information technology issues, the United States should 

advocate for, and explain its rationale for, a model of Internet governance 

that is inclusive of all appropriate stakeholders, not just governments. 

Recommendation 34 

We recommend that the US Government should streamline the 

process for lawful international requests to obtain electronic 

communications through the Mutual Legal Assistance Treaty process. 

Recommendation 35 

We recommend that for big data and data-mining programs 

directed at communications, the US Government should develop Privacy 

and Civil Liberties Impact Assessments to ensure that such efforts are 
39 

statistically reliable, cost-effective, and protective of privacy and civil 

liberties.

Recommendation 36 

We recommend that for future developments in communications 

technology, the US should create program-by-program reviews informed 

by expert technologists, to assess and respond to emerging privacy and 

civil liberties issues, through the Civil Liberties and Privacy Protection 

Board or other agencies.

Recommendation 37 

We recommend that the US Government should move toward a 

system in which background investigations relating to the vetting of 

personnel for security clearance are performed solely by US Government 

employees or by a non-profit, private sector corporation. 

Recommendation 38 

We recommend that the vetting of personnel for access to classified 

information should be ongoing, rather than periodic. A standard of 

Personnel Continuous Monitoring should be adopted, incorporating data 

from Insider Threat programs and from commercially available sources, 

to note such things as changes in credit ratings or any arrests or court 

proceedings. 

Recommendation 39 

We recommend that security clearances should be more highly 

differentiated, including the creation of “administrative access” 

clearances that allow for support and information technology personnel 
40 

to have the access they need without granting them unnecessary access to 

substantive policy or intelligence material. 

Recommendation 40 

We recommend that the US Government should institute a 

demonstration project in which personnel with security clearances 

would be given an Access Score, based upon the sensitivity of the 

information to which they have access and the number and sensitivity of 

Special Access Programs and Compartmented Material clearances they 

have. Such an Access Score should be periodically updated. 

Recommendation 41 

We recommend that the “need-to-share” or “need-to-know” models 

should be replaced with a Work-Related Access model, which would 

ensure that all personnel whose role requires access to specific 

information have such access, without making the data more generally 

available to cleared personnel who are merely interested. 

Recommendation 42

We recommend that the Government networks carrying Secret and 

higher classification information should use the best available cyber 

security hardware, software, and procedural protections against both 

external and internal threats. The National Security Advisor and the 

Director of the Office of Management and Budget should annually 

report to the President on the implementation of this standard. All 

networks carrying classified data, including those in contractor 

corporations, should be subject to a Network Continuous Monitoring 
41 

Program, similar to the EINSTEIN 3 and TUTELAGE programs, to record 

network traffic for real time and subsequent review to detect anomalous 

activity, malicious actions, and data breaches. 

Recommendation 43 

We recommend that the President’s prior directions to improve the 

security of classified networks, Executive Order 13587, should be fully 

implemented as soon as possible. 

Recommendation 44 

We recommend that the National Security Council Principals 

Committee should annually meet to review the state of security of US 

Government networks carrying classified information, programs to 

improve such security, and evolving threats to such networks. An 

interagency “Red Team” should report annually to the Principals with an 

independent, “second opinion” on the state of security of the classified 

information networks. 

Recommendation 45 

We recommend that all US agencies and departments with 

classified information should expand their use of software, hardware, 

and procedures that limit access to documents and data to those 

specifically authorized to have access to them. The US Government 

should fund the development of, procure, and widely use on classified 

networks improved Information Rights Management software to control 

the dissemination of classified data in a way that provides greater 

restrictions on access and use, as well as an audit trail of such use. 
42 

Recommendation 46 

We recommend the use of cost-benefit analysis and riskmanagement approaches, both prospective and retrospective, to orient 

judgments about personnel security and network security measures. 
43 

Chapter I 

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. Thus understood, it signals the immense importance of 

counteracting threats that come from those who seek to do the nation and 

its citizens harm. One of the government’s most fundamental 

responsibilities is to protect this form of security, broadly understood. 

Appropriately conducted and properly disciplined, surveillance can help to 

eliminate important national security risks. It has helped to save lives in the 

past. It will help to do so in the future. 

In the aftermath of the terrorist attacks of September 11, 2001, it 

should not be necessary to belabor this point. By their very nature, terrorist 

attacks tend to involve covert, decentralized actors who participate in plots 

that may not be easy to identify or disrupt. Surveillance can protect, and 

has protected, against such plots. But protection of national security 

includes a series of additional goals, prominently including counterintelligence and counter-proliferation. It also includes support for military 

operations. Amidst serious military conflicts, surveillance can be an 

indispensable means of protecting the lives of those who serve or fight for 

our nation, and also (and it is important to emphasize this point) for our 

friends and allies. 
44 

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). This form of security 

is a central component of the right of privacy, which Supreme Court Justice 

Louis Brandeis famously described as “the right to be let alone—the most 

comprehensive of rights and the right most valued by civilized men.”1 As 

Brandeis wrote, “The makers of our Constitution undertook to secure 

conditions favorable to the pursuit of happiness. They recognized the 

significance of man’s spiritual nature, of his feelings, and of his intellect. . . . 

They sought to protect Americans in their beliefs, their thoughts, their 

emotions and their sensations.”2 

This protection is indispensable to the protection of security, properly 

conceived. In a free society, one that is genuinely committed to selfgovernment, people are secure in the sense that they need not fear that 

their conversations and activities are being watched, monitored, 

questioned, interrogated, or scrutinized. Citizens are free from this kind of 

fear. In unfree societies, by contrast, there is no right to be let alone, and 

people struggle to organize their lives to avoid the government’s probing 

eye. The resulting unfreedom jeopardizes, all at once, individual liberty, 

self-government, economic growth, and basic ideals of citizenship. 

 

1 Olmstead v. United States, 277 US 438, 478 (Brandeis, J., dissenting). 

2 Id.
45 

It might seem puzzling, or a coincidence of language, that the word 

“security” embodies such different values. But the etymology of the word 

solves the puzzle; there is no coincidence here. In Latin, the word 

“securus” offers the core meanings, which include “free from care, quiet, 

easy,” and also “tranquil; free from danger, safe.” People who are at 

physical risk because of a threat of external violence are by definition in 

danger; they are not safe. So too, people made insecure by their own 

government, in their persons, houses, papers, and effects, can hardly be 

“free from care” or “tranquil.” And indeed, the first sentence of the 

Constitution juxtaposes the two values, explicitly using the word “secure”: 

“We the People of the United States, in Order to form a more 

perfect Union, establish Justice, insure domestic Tranquility, 

provide for the common defense, promote the general Welfare, and 

secure the Blessings of Liberty to ourselves and our Posterity, do 

ordain and establish this Constitution for the United States of 

America” (emphasis added). 

Some people believe that the two forms of security are in 

irreconcilable conflict with one another. They contend that in the modern 

era, with serious threats to the homeland and the rise of modern 

communications technologies, the nation must choose between them. We 

firmly reject this view. It is unsupported by the facts. It is inconsistent with 

our traditions and our law. Free societies can and must take the necessary 

steps to protect national security, by enabling public officials to counteract 
46 

and to anticipate genuine threats, while also ensuring that the people are 

secure “in their persons, houses, papers, and effects.” 

2. The central task is one of risk management; multiple risks are involved, 

and all of them must be considered. 

When public officials acquire information, they seek to reduce risks, 

above all risks to national security. If the government is able to obtain 

access to a great deal of information, it should be in a better position to 

mitigate serious threats of violence. And if the goal is to reduce such 

threats, a wide net seems far better than a narrow one, even if the 

government ends up acquiring a great deal of information that it does not 

need or want. As technologies evolve, it is becoming increasingly feasible 

to cast that wide net. In the future, the feasibility of pervasive surveillance 

will increase dramatically. From the standpoint of risk reduction, that 

prospect has real advantages. 

The challenge, of course, is that multiple risks are involved. The 

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. It is self-evident that as more information is 

acquired, the risk to privacy increases as well. One reason is that officials 

might obtain personal or private information that has nothing to do with 

threats of violence or indeed with criminality at all. History shows that the 

acquisition of information can create risks of misuse and abuse, perhaps in 

the form of intrusion into a legitimately private sphere. History also shows 
47 

that when government is engaged in surveillance, it can undermine public 

trust, and in that sense render its own citizens insecure. Privacy is a central 

aspect of liberty, and it must be safeguarded. 

Risks to freedom and civil liberties on the Internet and elsewhere.

Liberty includes a range of values, such as freedom of speech, freedom of 

religion, and freedom of association, that go well beyond privacy. If people 

are fearful that their conversations are being monitored, expressions of 

doubt about or opposition to current policies and leaders may be chilled, 

and the democratic process itself may be compromised. 

Along with many other nations, the United States has been 

committed to the preservation and expansion of the Internet as an open, 

global space for freedom of expression. The pursuit of Internet freedom 

represents the effort to protect human rights online. These rights include 

the right to speak out, to dissent, and to offer or receive information across 

national borders. Citizens ought to be able to enjoy these rights, free from 

fear that their words will result in punishment or threat. A particular 

concern involves preservation of the rights, and the security, of journalists 

and the press; their rights and their security are indispensable to selfgovernment. 

Risks to our relationships with other nations. Insofar as the 

information comes from other nations—whether their leaders or their 

citizens—its acquisition, dissemination, or use might seriously compromise 

our relationships with those very nations. It is important to consider the 

potential effects of surveillance on these relationships and, in particular, on 
48 

our close allies and others with whom we share values, interests, or both. 

Unnecessary or excessive surveillance can create risks that outweigh any 

gain. Those who do not live within our borders should be treated with 

dignity and respect, and an absence of such treatment can create real risks. 

Risks to trade and commerce, including international commerce. Free 

trade, including free communications, is important to commerce and 

economic growth. Surveillance and the acquisition of information might 

have harmful effects on commerce, especially if it discourages people—

either citizens of the United States or others—from using certain 

communications providers. If the government is working closely or 

secretly with specific providers, and if such providers cannot assure their 

users that their communications are safe and secure, people might well 

look elsewhere. In principle, the economic damage could be severe. 

These points make it abundantly clear that if officials can acquire 

information, it does not follow that they should do so. Indeed, the fact that 

officials can legally acquire information (under domestic law) does not 

mean that they should do so. In view of growing technological capacities, 

and the possibility (however remote) that acquired information might 

prove useful, it is tempting to think that such capacities should be used 

rather than ignored. The temptation should be resisted. Officials must 

consider all relevant risks, not merely one or a subset. 

To this point we add an additional consideration, which is the 

immense importance of maintaining public trust. Some reforms are 

justified as improvements of the system of risk management. Other reforms 
49 

are justified, not only or primarily on that ground, but as ways to promote 

a general sense, in the United States and abroad, that the nation’s practices 

and decisions are worthy of trust. 

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. Some tradeoffs are inevitable; we shall explore 

the question of balance in some detail. But in critical respects, the 

suggestion is inadequate and misleading. 

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, or gender. These prohibitions are foundational, 

and they apply both inside and outside our territorial borders. 

The purposes of surveillance must be legitimate. If they are not, no 

amount of “balancing” can justify surveillance. For this reason, it is 

exceptionally important to create explicit prohibitions and safeguards, 

designed to reduce the risk that surveillance will ever be undertaken for 

illegitimate ends. 
50 

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 policy, public 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, including benefits and costs (to the extent feasible). In the context 

of government regulation, President Ronald Reagan established a national 

commitment to careful analysis of regulations in his Executive Order 12291, 

issued in 1981. In 2011, President Barack Obama issued Executive Order 

13563, which renewed and deepened the commitment to quantitative, 

evidence-based analysis, and added a number of additional requirements 

to improve regulatory review, directing agencies “to use the best available 

techniques to quantify anticipated present and future benefits and costs as 

accurately as possible” in order to achieve regulatory ends. 

A central component of Executive Order 13563 involves 

“retrospective analysis,” meant to ensure not merely prospective analysis 

of (anticipated) costs and benefits, but also continuing efforts to explore 

what policies have actually achieved, or failed to achieve, in the real world. 

In our view, both prospective and retrospective analyses have important 

roles to play in the domain under discussion, though they also present 

distinctive challenges, above all because of limits in available knowledge 

and challenges in quantifying certain variables. 

Before they are undertaken, surveillance decisions should depend (to 

the extent feasible) on a careful assessment of the anticipated consequences, 
51 

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. 

As we have seen, there is always a possibility that acquisition of more 

information—whether in the US or abroad—might ultimately prove 

helpful. But that abstract possibility does not, by itself, provide a sufficient 

justification for acquiring more information. Because risk management is 

inevitably involved, the question is one of benefits and costs, which 

requires careful attention to the range of possible outcomes and also to the 

likelihood that they will actually occur. To the extent feasible, such 

attention must be based on the available evidence. 

Where evidence is unavailable, public officials must acknowledge the 

limits of what they know. In some cases, public officials are reasonably 

attempting to reduce risks that are not subject to specification or 

quantification in advance. In such cases, experience may turn out to be the 

best teacher; it may show that programs are not working well, and that the 

benefits and costs are different from what was anticipated. Continued 

learning and constant scrutiny, with close reference to the consequences, is 

necessary to safeguard both national security and personal privacy, and to 

ensure proper management of the full range of risks that are involved. 

Finally, in constructing oversight and monitoring of intelligence 

agencies and particularly of surveillance, the US Government must take 
52 

care to address perceptions of potential abuse, as well as any realities. To 

maintain and enhance the required level of public trust, especially careful 

oversight is advisable. 
53 

Chapter II 

Lessons of History

A. The Continuing Challenge 

For reasons that we have outlined, it is always challenging to strike 

the right balance between the often competing values of national security 

and individual liberty, but as history teaches, it is particularly difficult to 

reconcile these values in times of real or perceived national crisis. Human 

nature being what it is, there is inevitably a risk of overreaction when we 

act out of fear. At such moments, those charged with the responsibility for 

keeping our nation safe, supported by an anxious public, have too often 

gone beyond programs and policies that were in fact necessary and 

appropriate to protect the nation and taken steps that unnecessarily and 

sometimes dangerously jeopardized individual freedom. 

This phenomenon is evident throughout American history. Too often, 

we have overreacted in periods of national crisis and then later, with the 

benefit of hindsight, recognized our failures, reevaluated our judgments, 

and attempted to correct our policies going forward. We must learn the 

lessons of history. 

As early as 1798, Congress enacted the Sedition Act, now widely 

regarded as a violation of the most fundamental principles of freedom of 

expression. Nor is the historical verdict kind to a wide range of libertyrestricting measures undertaken in other periods of great national anxiety, 
54 

including the repeated suspensions of the writ of habeas corpus during the 

Civil War, the suppression of dissent during World War I, the internment 

of Japanese-Americans during World War II, the campaign to expose and 

harass persons suspected of “disloyalty” during the McCarthy era, and the 

widespread and unlawful spying on critics of the government’s policies 

during the Vietnam War. 3 

It is true that when the nation is at risk, or engaged in some kind of 

military conflict, the argument for new restrictions may seem, and even be, 

plausible. Serious threats may tip preexisting balances. But it is also true 

that in such periods, there is a temptation to ignore the fact that risks are on 

all sides of the equation, and to compromise liberty at the expense of 

security. One of our central goals in this Report is to provide secure 

foundations for future decisions, when public fears may heighten those 

dangers. 

With respect to surveillance in particular, the nation’s history is 

lengthy and elaborate, but the issues in the modern era can be traced back 

directly to the Vietnam War. Presidents Lyndon Johnson and Richard 

Nixon encouraged government intelligence agencies to investigate alleged 

“subversives” in the antiwar movement. The Federal Bureau of 

Investigation (FBI) engaged in extensive infiltration and electronic 

surveillance of individuals and organizations opposed to the war; the 

 

3 See Frank J. Donner, The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System

(Knopf 1980); Peter Irons, Justice at War (Oxford 1983); William H. Rehnquist, All the Laws But One: Civil 

Liberties in Wartime (Knopf 1998); James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and 

American Civil Liberties (Cornell 1956); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the 

Sedition Act of 1798 to the War on Terrorism (W.W. Norton 2004). 
55 

Central Intelligence Agency (CIA) monitored a broad array of antiwar 

organizations and activities, accumulating information on more than 

300,000 people; and Army intelligence initiated its own domestic spying 

operation, gathering information on more than 100,000 opponents of the 

Vietnam War, including Members of Congress, civil rights leaders, and 

journalists. The government sought not only to investigate its critics on a 

massive scale, but also to expose, disrupt, and neutralize their efforts to 

affect public opinion.4 

As some of this information came to light, Congress authorized 

investigating committees to probe more deeply. One Senate committee 

made the following findings: 

The Government has often undertaken the secret surveillance of citizens 

on the basis of their political beliefs, even when those beliefs posed no 

threat of violence or illegal acts. . . . The Government, operating primarily 

through secret informants, . . . has swept in vast amounts of information 

about the personal lives, views, and associations of American citizens. 

Investigations of groups deemed potentially dangerous—and even of 

groups suspected of associating with potentially dangerous 

organizations—have continued for decades, despite the fact that those 

groups did not engage in unlawful activity5. . . . 

 

4 See Detailed Staff Reports of the Intelligence Activities and the Rights of Americans: Book III, Final Report of 

the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United 

States Senate, 94th (Apr. 29, 1976); Robert Justin Goldstein, Political Repression in Modern America: From 

1870 to the Present (Schenckman 1978); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the 

Sedition Act of 1798 to the War on Terrorism, 487-500, (W.W. Norton) 2004; Athan Theoharis, Spying on 

Americans: Political Surveillance from Hoover to the Huston Plan (Temple 1978). 

5 See Final Report of the United States Senate Select Committee to Study Governmental Operations with Respect to 

Intelligence Activities. S. Rep. No. 755, 94th Cong., 2d Sess., at 5 (April 29, 1976) (Church Committee 

Report).
56 

In 1976, President Gerald Ford formally prohibited the CIA from 

using electronic or physical surveillance to collect information about the 

domestic activities of Americans and banned the National Security Agency 

from intercepting any communication made within, from, or to the United 

States, except lawful electronic surveillance under procedures approved by 

the Attorney General.6 That same year, Attorney General Edward Levi 

imposed new restrictions on the investigative activities of the FBI. In these 

guidelines, the Attorney General prohibited the FBI from investigating any 

group or individual on the basis of protected First Amendment activity in 

the absence of “specific and articulable facts” justifying a criminal 

investigation. Attorney General Levi adopted these guidelines without 

regard to whether such investigations violated the Constitution. He 

justified them as sound public policy and contended that the protection of 

civil liberties demands not only compliance with the Constitution, but also 

a restrained use of government power, undertaking what we would 

describe as a form of risk management. 7

* * * * * * * * * 

The United States has made great progress over time in its protection 

of “the Blessings of Liberty”—even in times of crisis. The major restrictions 

of civil liberties that have blackened our past would be unthinkable today. 

 

6 See Executive Order 11905, United States Foreign Intelligence Activities, 41 Fed. Reg. 7703 (Feb. 18, 

1976). 

7 The Attorney General’s Guidelines on Domestic Security Investigations are reprinted in FBI Domestic 

Security Guidelines: Oversight Hearing Before the Committee on the Judiciary, H.R., 98th Cong., 1st Sess. 

67 (Apr. 27, 1983); see also Office of the Inspector General, Special Report: The Federal Bureau of 

Investigation’s Compliance with the Attorney General’s Investigative Guidelines ch. 2 (Sept. 2005); 

Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on 

Terrorism, pp. 496-497 (W.W. Norton 2004).
57 

This is an important national achievement, and one we should not take for 

granted. But it is much easier to look back on past crises and find our 

predecessors wanting than it is to make wise judgments when we 

ourselves are in the eye of the storm. As time passes, new dangers, new 

technologies, and new threats to our freedom continually emerge. 

Knowing what we did right—and wrong—in the past is a useful, indeed 

indispensable, guide, but it does not tell us how to get it right in the future. 

One of the central goals of this Report is to suggest reforms that will reduce 

the risk of overreaction in the future. 

B. The Legal Framework as of September 11, 2001

In the wake of the disclosures in the 1970s, several congressional 

committees examined the failures that led to the abuses. The most 

influential of those committees was the Senate’s Select Committee to Study 

Governmental Operations with Respect to Intelligence Activities, which 

issued its comprehensive Final Report in April of 1976. Known as the 

Church Committee, after its chairman, Senator Frank Church, this Report 

has shaped much of our nation’s thinking about foreign intelligence 

surveillance for the past 40 years8

At the outset, the Committee stated unequivocally that espionage, 

sabotage, and terrorist acts “can seriously endanger” both the security of 

the nation and “the rights of Americans,” that “carefully focused 

intelligence investigations can help prevent such acts,” and that “properly 

controlled and lawful intelligence is vital to the nation’s interest.” At the 

 

8 Church Committee Report (April 26, 1976). 
58 

same time, the Committee emphasized the dangers that “intelligence 

collection . . . may pose for a society grounded in democratic principles.” 

Echoing former Attorney General and Supreme Court Chief Justice Harlan 

Fiske Stone, the Committee warned that an intelligence agency operating in 

secret can “become a menace to a free government . . . because it carries 

with it the possibility of abuses of power which are not always quickly 

apprehended or understood.” The “critical question,” the Committee 

explained, is “to determine how the fundamental liberties of the people can 

be maintained in the course of the Government’s effort to protect their 

security.”9

Looking back over the preceding decades, the Committee noted that 

“too often . . . intelligence activities have invaded individual privacy and 

violated the rights of lawful assembly and political expression.”10 This 

danger, the Committee observed, is inherent in the very essence of 

government intelligence programs, because the “natural tendency of 

Government is toward abuse of power” and because “men entrusted with 

power, even those aware of its dangers, tend, particularly when pressured, 

to slight liberty.”11 Moreover, because abuse thrives on secrecy, there is a 

natural “tendency of intelligence activities to expand beyond their initial 

scope” and to “generate ever-increasing demands for new data.”12 And to 

 

9 Id., at v, vii, 1, 3. 

10 Id. 

11 Id. 

12 Id. 
59 

make matters worse, “once intelligence has been collected there are strong 

pressures to use it.”13 

In reviewing “the overwhelming . . . excesses” of the past, the Church 

Committee found not only that those excesses violated the rights of 

Americans by invading their privacy and “undermining the democratic 

process,” but also that their “usefulness” in “serving the legitimate goal of 

protecting society” was often “questionable.”14 Those abuses, the 

Committee reasoned, “were due in large measure to the fact that the 

system of checks and balances—created in our Constitution to limit abuse 

of Governmental power—was seldom applied to the Intelligence 

Community.”15 

The absence of checks and balances occurred both because 

government officials failed to exercise appropriate oversight and because 

intelligence agencies systematically concealed “improper activities from 

their superiors in the Executive branch and from the Congress.”16 Although 

recognizing that “the excesses of the past do not . . . justify depriving the 

United States” of the capacity to “anticipate” and prevent “terrorist 

violence,” the Committee made clear that “clear legal standards and 

effective oversight are necessary to ensure” that “intelligence activity does 

not itself undermine the democratic system it is intended to protect.”17 

 

13 Id., at 4, 291-292. 

14 Id. 

15 Id. 

16 Id. 

17 Id., at 14-15, 18, 20. 
60 

In looking to the future, the Committee was especially concerned 

with the impact of new and emerging technologies. The Committee 

expressly invoked Justice Louis Brandeis’ famous dissenting opinion in 

Olmstead v. United States,

18 in which the Supreme Court held in 1928, over 

the objections of Justices Brandeis and Oliver Wendell Holmes, that 

wiretapping was not a “search” within the meaning of the Fourth 

Amendment. In his dissenting opinion, Justice Brandeis cautioned that, 

since the adoption of the Constitution, “subtler and more far-reaching 

means of invading privacy have become available to the government . . . 

[and] the progress of science in furnishing the Government with means of 

espionage is not likely to stop with wiretapping.”19 The Committee 

observed that Brandeis’ warning applied “with obvious force to the 

technological developments that allow NSA to monitor an enormous 

number of communications each year.”20 

“Personal privacy,” the Committee added, is “essential to liberty and 

the pursuit of happiness” and is necessary to ensure “that all our citizens 

may live in a free and decent society.”21 Indeed, “when Government 

infringes the right of privacy, the injury spreads far beyond the particular 

citizens targeted to untold numbers of other Americans who may be 

intimidated.” The Committee added that, in the words of former Attorney 

General and Supreme Court Justice Robert H. Jackson, without clear legal 

limitations, “a federal investigative agency would ‘have enough on enough 

 

18 Olmstead v. United States, 277 US 438, at 473 and 478 (1928) (Brandeis, J., dissenting). 

19 Id., at 473-474 (Brandeis, J. dissenting). 

20 Id., at 202. 

21 Id. 
61 

people’ so that ‘even if it does not elect to prosecute them’ the Government 

would . . . still ‘find no opposition to its policies.’”22 Indeed, Jackson added, 

“even those who are supposed to supervise [our intelligence agencies] are 

likely to fear [them].’”23

With this warning in mind, the Committee cautioned that, “in an era 

where the technological capability of Government relentlessly increases, 

we must be wary about the drift toward ‘big brother government.’” 

Because “the potential for abuse is awesome,” it demands “special 

attention to fashioning restraints which not only cure past problems but 

anticipate and prevent the future misuse of technology.” To this end, 

“those within the Executive Branch and the Congress . . . must be fully 

informed” if they are to “exercise their responsibilities wisely.” Moreover, 

“the American public . . . should know enough about intelligence activities 

to be able to apply its good sense to the underlying issues of policy and 

morality.” “Knowledge,” the Committee insisted, “is the key to control.” 

Thus, “secrecy should no longer be allowed to shield the existence of 

constitutional, legal, and moral problems from the scrutiny of the three 

branches of government or from the American people themselves.”24 

The Committee called for “a comprehensive legislative charter 

defining and controlling the intelligence activities of the Federal 

 

22 Id. 

23 Church Committee Report, (April 1976) pp. at 290-291, quoting Robert H. Jackson, The Supreme Court in the 

American System of Government, 70-71 (New York: Harper Torchbook 1955). 

24 Id., at 289 and 292. 
62 

Government.”25 The Committee set forth a series of specific principles and 

recommendations, including the following: 

* “There is no inherent constitutional authority for the President or 

any intelligence agency to violate the law.” 

* “Government action which directly infringes the rights of free 

speech and association must be prohibited.” 

* “No intelligence agency may engage” in “federal domestic 

security activities . . . unless authorized by statute.” 

* The NSA “should not monitor domestic communications, even 

for foreign intelligence purposes.” 

* To the extent the NSA inadvertently monitors the 

communications of Americans, it must “make every practicable 

effort to eliminate or minimize the extent to which the 

communications are intercepted, selected, or monitored.” 

* To the extent the NSA inadvertently monitors the 

communications of Americans, it should be prohibited “from 

disseminating such communications, or information derived 

therefrom, . . . unless the communication indicates evidence of 

hostile foreign intelligence or terrorist activity, or felonious criminal 

conduct, or contains a threat of death or serious bodily harm.” 

* “NSA should not request from any communications carrier any 

communication which it could not otherwise obtain pursuant to 

these recommendations.” 

* “The responsibility and authority of the Attorney General for 

oversight of federal domestic security activities must be clarified 

 

25 Id., at 293. 
63 

and general counsels and inspectors general of intelligence agencies 

strengthened.” 

* “Each year the . . . intelligence agencies . . . should be required to 

seek annual statutory authorization for their programs.” 

* Congress should establish a “scheme which will afford effective 

redress to people who are injured by improper federal intelligence 

activity.” 

* There should be “vigorous” congressional “oversight to review 

the conduct of domestic security activities through new permanent 

intelligence oversight committees.” 

* Because “American citizens should not lose their constitutional 

rights to be free from improper intrusion by their Government 

when they travel overseas,” the “rights of Americans” must be 

protected “abroad as well as at home.”26

* * * * * * * * * 

In 1978, Congress enacted the Foreign Intelligence Surveillance Act 

(FISA) to implement the recommendations of the Church Committee and 

other congressional committees.27 A central issue concerned the legality of 

electronic surveillance for the purpose of foreign intelligence. In 1928, the 

Supreme Court had held in Olmstead28 that a wiretap is not a “search” 

within the meaning of the Fourth Amendment because it does not involve 

a physical intrusion into an individual’s personal property. Despite the 

holding in Olmstead, in the 1934 Communications Act Congress limited the 

 

26 Id., at 295-339. 

27 50 U.S.C. ch. 36. 

28 277 US 438 (1928). 
64 

circumstances in which government officials could lawfully engage in 

wiretaps in the context of criminal investigations.29 

In 1967, in Katz v. United States,

30 the Court overruled Olmstead, 

noting that the Fourth Amendment “protects people not places.” The Court 

reasoned that, in light of the realities of modern technology, the Fourth 

Amendment must be understood to protect the individual’s and society’s 

“reasonable expectations of privacy.” It was this holding that led to the 

conclusion that the Fourth Amendment prohibits the government from 

using wiretapping unless it first obtains a search warrant from a neutral 

and detached magistrate based on a finding of probable cause to believe 

that the interception will produce evidence of criminal conduct. 

It remained unclear, however, whether that same rule would apply 

when the government investigates “the activities of foreign powers, within 

or without this country.”31 The general assumption was that the President 

has broad constitutional authority to protect the nation in the realm of 

foreign intelligence surveillance without complying with the usual 

requirements of the Fourth Amendment. It was against this background 

that Congress considered FISA. 

FISA attempted to safeguard the nation against the kinds of abuses 

that had been documented by the Church Committee, while at the same 

time preserving the nation’s ability to protect itself against external threats. 

FISA was a carefully designed compromise between those who wanted to 

 

29 47 U.S.C. § 151 et seq. 

30 389 US. 347, 351 (1967). 

31 United States v. United States District Court for the Eastern District of Michigan, 407 US 297, 308 (1972). 
65 

preserve maximum flexibility for the intelligence agencies and those who 

wanted to place foreign intelligence surveillance under essentially the same 

restrictions as ordinary surveillance activities (at least insofar as the rights 

of Americans were concerned). 

To that end, FISA brought foreign intelligence surveillance within a 

legal regime involving strict rules and structured oversight by all three 

branches of the government, but also granted the government greater 

freedom in the realm of foreign intelligence surveillance than it had in the 

context of others types of surveillance.32

FISA restricted the government’s authority to use electronic 

surveillance inside the United States to obtain foreign intelligence from 

“foreign powers.” The term “foreign powers” was defined to include not 

only foreign nations, but also the agents of foreign nations and any “group 

engaged in international terrorism.”33 FISA established the Foreign 

Intelligence Surveillance Court (FISC), consisting of seven (now eleven) 

federal judges appointed by the Chief Justice of the United States to serve 

staggered terms on the FISC. FISA provided that any government agency 

seeking to use electronic surveillance for foreign intelligence purposes 

inside the United States had to obtain a warrant from the FISC. For such a 

warrant to be issued, the government had to show “probable cause to 

 

32 124 Cong. Rev. 34,845 (1978). 

33 The Act defines “foreign power” as including, among other things, “a foreign government or any 

component thereof,” “a faction of a foreign nation,” “an entity that is openly acknowledged by a foreign 

government . . . to be directed and controlled by such foreign government,” “a group engaged in 

international terrorism,” “a foreign-based political organization,” and “an entity . . . that is engaged in the 

international proliferation of weapons of mass destruction.” 50 U.S.C. § 1801(a). 
66 

believe that the target of the electronic surveillance” is an agent of a foreign 

power.34

It is important to note several significant elements to this approach. 

First, by requiring the government to obtain a warrant from the FISC, FISA 

denied the President the previously assumed authority to engage in foreign 

intelligence surveillance inside the United States without judicial 

supervision. This was a major innovation. 

Second, Congress created the FISC so it could deal with classified 

information and programs involved in foreign intelligence surveillance. 

Ordinary federal courts lacked the facilities and clearances to deal with 

such matters. A special court was therefore necessary if such classified 

matters were to be brought under the rule of law. 

Third, FISA did not deal with the President’s authority to engage in 

foreign intelligence activities outside the United States. FISA did not require 

the government to obtain a FISA warrant from the FISC before it could 

legally wiretap a telephone conversation between two Russians in Moscow 

or between a US citizen in France and a US citizen in England. In such 

circumstances, FISA left the issue, as in the past, to the Executive Branch, 

operating under the National Security Act of 1947,35 the National Security 

Agency Act of 1959,36 and the US Constitution. 

Fourth, FISA did not limit the government’s use of electronic 

surveillance in the foreign intelligence context to those situations in which 

 

34 50 U.S.C. § 1805. 

35 50 U.S.C. ch. 15. 

36 50 U.S.C. § 3601.
67 

the government has probable cause to believe that criminal activity is afoot. 

Rather, FISA permitted the government to engage in electronic surveillance 

in the United States to obtain foreign intelligence information as long as the 

government can establish to the satisfaction of the FISC that it has probable 

cause to believe that the “target” of the surveillance is an “agent of a 

foreign power.” 

These features of the system established by FISA reflect Congress’ 

understanding at the time of the central differences between electronic 

surveillance for foreign intelligence purposes and electronic surveillance 

for traditional criminal investigation purposes. But in light of past abuses, 

the possibility of politicization, and the decision to authorize foreign 

intelligence surveillance of individuals, including American citizens, for 

whom there is no probable cause to suspect criminal conduct, FISA 

instituted a broad range of safeguards to prevent misuse of this authority. 

For example, FISA requires the Attorney General to approve all 

applications for FISA warrants; it requires the Attorney General to report to 

the House and Senate Intelligence Committees every six months on the 

FISA process and the results of FISA-authorized surveillance; it requires 

the Attorney General to make an annual report to Congress and the public 

about the total number of applications made for FISA warrants and the 

total number of applications granted, modified, or denied; and it expressly 

provides that no United States citizen or legal resident of the United States 

may be targeted for surveillance under FISA “solely upon the basis of 

activities protected by the first amendment to the Constitution of the 
68 

United States.” Finally, FISA requires the use of “minimization” 

procedures to protect the privacy rights of individuals who are not 

themselves “targets” of FISA surveillance but whose conversations or 

personal information are incidentally picked up in the course of electronic 

surveillance of legitimate targets under the Act.37 

FISA changed only modestly from 1978 until the events of September 

11, 2001. Although FISA originally applied only to electronic surveillance, 

Congress gradually widened its scope to other methods of investigation. In 

1995, it was extended to physical searches; in 1998, it was extended to pen 

register and trap-and-trace orders (which enable the government to obtain 

lists of the telephone numbers and e-mails contacted by an individual after 

the issuance of the order); and in that same year it was extended to permit 

access to limited forms of business records, including documents kept by 

common carriers, public accommodation facilities, storage facilities, and 

vehicle rental facilities.38 

From 1978 until 2001, FISA offered an important legal framework 

designed to maintain the balance between the nation’s commitment both to 

“provide for the common defence” and to “secure the Blessings of Liberty.” 

* * * * * * * * * 

FISA is not the only legal authority governing foreign intelligence 

activities. Other statutes and Executive Orders address other facets of the 

 

37 50 U.S.C. § 1801. 

38 See 50 U.S.C. § 1842 (2008) (pen register and trap- and- trace); 50 U.S.C. § 1862(a) (2001) (business 

records). 
69 

operations of the Intelligence Community. The National Security Act39 and 

other laws relating to specific agencies, such as the Central Intelligence 

Agency Act40 and the National Security Agency Act,41 regulate what 

agencies can do, and the Intelligence Community is also governed by laws 

such as the Privacy Act42 and the Electronic Communications Privacy Act.43 

Executive Order 12333 is the principal Executive Branch authority for 

foreign intelligence activities not governed by FISA.

44 Executive Order 12333 

specifies the missions and authorities of each element of the Intelligence 

Community; sets forth the principles designed to strike an appropriate 

balance between the acquisition of information and the protection of 

personal privacy; and governs the collection, retention, and dissemination 

of information about United States Persons (American citizens and noncitizens who are legal residents of the United States). 

Executive Order 12333 authorizes the Attorney General to 

promulgate guidelines requiring each element of the Intelligence 

Community to have in place procedures prescribing how it can collect, 

retain, and disseminate information about US persons. The guidelines 

define each agency’s authorities and responsibilities. With respect to 

 

39 50 U.S.C. ch. 15. 

40 50 U.S.C. § 403a. 

41 50 U.S.C. § 3601. 

42 5 U.S.C. § 552(a). 

43 18 U.S.C. §§ 2510–2522.

44 Exec. Order No. 12333, 40 Fed. Reg. 235 (December 4, 1981), as amended by Executive Order 13284 (Jan. 

23, 2003), and by Executive Order 13355 (Aug. 27, 2004), and further amended by Executive Order 13470 

(July 30, 2008). Executive Order 12333 was first issued by President Gerald Ford as Executive Order 

11905 and then replaced by President Jimmy Carter as Executive Order 12036, the current United States 

Intelligence Activities was signed on December 4, 1981 as Executive Order 12333 by President Ronald 

Reagan and updated by President George W. Bush in 2008.
70 

National Security Agency (NSA), for example, Executive Order 12333 

designates NSA as the manager for Signals Intelligence (SIGINT) for the 

Intelligence Community, and the Attorney General’s Guidelines define 

how SIGINT may be conducted for collection activities not governed by 

FISA.45 

Section 2.4 of Executive Order 12333 prohibits specific elements of the 

Intelligence Community from engaging in certain types of activities inside 

the United States. The CIA, for example, is generally prohibited from 

engaging in electronic surveillance, and members of the Intelligence 

Community other than the FBI are generally prohibited from conducting 

non-consensual physical searches inside the United States. 

As the principal governing authority for United States intelligence 

activities outside the United States, Executive Order 12333 requires that the 

collection of foreign intelligence information conform to established 

intelligence priorities. Under this authority, electronic surveillance of nonUS Persons who are outside the United States must meet a separate set of 

standards. These standards and priorities are discussed in Chapter IV of 

this Report. 

 

45 These Guidelines are captured in the Department of Defense Directive 5240.1-R entitled, “DOD 

Activities that May Affect US Persons,” including a classified appendix particularized for NSA. The 

guidelines are further enunciated within NSA through an internal directive, US Signals Intelligence 

Directive 18, commonly referred to as USSID-18. 
71 

C. September 11 and its Aftermath 

The September 11 attacks were a vivid demonstration of the need for 

detailed information about the activities of potential terrorists. This was so 

for several reasons. 

First, some information, which could have been useful, was not 

collected and other information, which could have helped to prevent the 

attacks, was not shared among departments. 

Second, the scale of damage that 21st-century terrorists can inflict is 

far greater than anything that their predecessors could have imagined. We 

are no longer dealing with threats from firearms and conventional 

explosives, but with the possibility of weapons of mass destruction, 

including nuclear devices and biological and chemical agents. The damage 

that such attacks could inflict on the nation, measured in terms of loss of 

life, economic and social disruption, and the consequent sacrifice of civil 

liberties, is extraordinary. The events of September 11 brought this home 

with crystal clarity. 

Third, 21st-century terrorists operate within a global communications 

network that enables them both to hide their existence from outsiders and 

to communicate with one another across continents at the speed of light. 

Effective safeguards against terrorist attacks require the technological 

capacity to ferret out such communications in an international 

communications grid. 

Fourth, many of the international terrorists that the United States and 

other nations confront today cannot realistically be deterred by the fear of 
72 

punishment. The conventional means of preventing criminal conduct—the 

fear of capture and subsequent punishment—has relatively little role to 

play in combating some contemporary terrorists. Unlike the situation 

during the Cold War, in which the Soviet Union was deterred from 

launching a nuclear strike against the United States in part by its fear of a 

retaliatory counterattack, the terrorist enemy in the 21st-century is not a 

nation state against which the United States and its allies can retaliate with 

the same effectiveness. In such circumstances, detection in advance is 

essential in any effort to “provide for the common defence.” 

Fifth, the threat of massive terrorist attacks involving nuclear, 

chemical, or biological weapons can generate a chilling and destructive 

environment of fear and anxiety among our nation’s citizens. If Americans 

came to believe that we are infiltrated by enemies we cannot identify and 

who have the power to bring death, destruction, and chaos to our lives on a 

massive scale, and that preventing such attacks is beyond the capacity of 

our government, the quality of national life would be greatly imperiled. 

Indeed, if a similar or even more devastating attack were to occur in the 

future, there would almost surely be an impulse to increase the use of 

surveillance technology to prevent further strikes, despite the potentially 

corrosive effects on individual freedom and self-governance. 

In the years after the attacks of September 11, a former cabinet 

member suggested a vivid analogy. He compared “the task of stopping” 

the next terrorist attack “to a goalie in a soccer game who ‘must stop every 

shot,’” for if the enemy “‘scores a single goal,’” the terrorists succeed. To 
73 

make matters worse, “‘the goalie cannot see the ball—it is invisible. So are 

the players—he doesn’t know how many there are, or where they are, or 

what they look like.’”46 Indeed, the invisible players might shoot the ball 

“from the front of the goal, or from the back, or from some other 

direction—the goalie just doesn’t know.’”47 

Although the analogy might be overstated, it is no surprise that after 

the September 11, 2001 terrorist attacks the government turned to a much 

more aggressive form of surveillance in an effort to locate and identify 

potential terrorists and prevent future attacks before they could occur. One 

thing seemed clear: If the government was overly cautious in its efforts to 

detect and prevent terrorist attacks, the consequences for the nation could 

be disastrous. The challenge was, and remains, how to obtain information 

without compromising other values, including the freedoms that 

Americans, and citizens of many other nations, hold most dear. 

D. The Intelligence Community 

Executive Order 12333 sets forth the central objective of the nation’s 

Intelligence Community: “Accurate and timely information about the 

capabilities, intentions and activities of foreign powers, organizations or 

persons and their agents is essential to informed decisionmaking in the 

areas of national defense and foreign relations. Collection of such 

information is a priority objective and will be pursued in a vigorous, 

innovative and responsible manner that is consistent with the Constitution 

 

46 Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration pp. 73-74 (W.W. 

Norton 2007). 

47 Id.
74 

and applicable law and respectful of the principles upon which the United 

States was founded.”48 Although the Review Group was not charged with 

the task of undertaking a comprehensive evaluation of all of the many and 

varied elements and activities of the Intelligence Community, we can offer 

a few general observations. 

First, the collection of foreign intelligence is a vital component of 

protecting the national security, including protection from terrorist threats. 

Indeed, foreign intelligence may be more important today than ever before 

in our history. This is so in part because the number of significant national 

security and foreign policy issues facing the United States in the 21st 

century is large and perhaps unprecedented. These issues include the 

threats of international terrorism, the proliferation of weapons of mass 

destruction, cyber espionage and warfare, the risk of mass atrocities, and 

the international elements of organized crime and narcotics and human 

trafficking. They include as well the challenges associated with winding 

down the war in Afghanistan, profound and revolutionary change in the 

Middle East, and successfully managing our critically important 

relationships with China and Russia. 

Most of these challenges have a significant intelligence component. 

Policymakers cannot understand the issues, cannot make policy with 

regard to those issues, and cannot successfully implement that policy 

without reliable intelligence. Any expert with access to open sources can 

provide insight on questions such as the Eurozone crisis and Japanese 

 

48 Executive Order 12333 § 2.1. 
75 

politics, but insights on the plans, intentions, and capabilities of al-Qa’ida, 

on the status of the Iranian nuclear weapons program, and on the 

development of cyber warfare tools by other nations are simply not 

possible without reliable intelligence. 

A wide range of intelligence collectors, including NSA, have made 

important contributions to protecting the nation’s security. 

Notwithstanding recent controversies, and the importance of significant 

reforms, the national security of the United States depends on the 

continued capacity of NSA and other agencies to collect essential 

information. In considering proposals for reform, now and for the future, 

policymakers should avoid the risk of overreaction and take care in making 

changes that could undermine the capabilities of the Intelligence 

Community. 

Second, although recent disclosures and commentary have created 

the impression in some quarters that NSA surveillance is indiscriminate 

and pervasive across the globe, that is not the case. NSA focuses on 

collecting foreign intelligence information that is relevant to protecting the 

national security of the United States and its allies. Moreover, much of 

what NSA collects is shared with the governments of many other nations 

for the purpose of enhancing their national security and the personal 

security of their citizens. 

Third, FISA put in place a system of oversight, review, and checksand-balances to reduce the risk that elements of the Intelligence 

Community would operate outside of the law. We offer many 
76 

recommendations to improve the existing procedures, but it is important to 

note that they now include a wide range of inspectors general, privacy 

oversight boards, minimization procedures,49 intensive training 

requirements, mandatory reviews by the Attorney General and the 

Director of National Intelligence, judicial oversight by the FISA Court, and 

regular reporting to Congress. Appendix C provides information on these 

oversight mechanisms. 

Significantly, and in stark contrast to the pre-FISA era, the Review 

Group found no evidence of illegality or other abuse of authority for the 

purpose of targeting domestic political activity. This is of central 

importance, because one of the greatest dangers of government 

surveillance is the potential to use what is learned to undermine 

democratic governance. On the other hand, as discussed later in this 

Report, there have been serious and persistent instances of noncompliance 

in the Intelligence Community’s implementation of its authorities. Even if 

unintentional, these instances of noncompliance raise serious concerns 

about the Intelligence Community’s capacity to manage its authorities in an 

effective and lawful manner. 

Fourth, many of the rules governing the actions of the Intelligence 

Community were amended in the wake of the attacks of September 11. 

Predictably, and quite properly, they were amended to give the 

 

49 Minimization procedures govern the implementation of electronic surveillance to ensure that it 

conforms to its authorized purpose and scope. They require the government to “minimize” the retention 

and dissemination of US person information acquired by inadvertent collection. Under FISA, 

minimization procedures are adopted by the Attorney General and reviewed by the FISA Court. See 50 

U.S.C.A. § 1801(h). See generally David S. Kris and J. Douglas Wilson, I National Security Investigations and 

Prosecutions 2d pp. 321-353 (West 2012). 
77 

Intelligence Community much broader authority to take action to ensure 

that the United States could prevent similar attacks in the future. But 

because we were acting in a moment of crisis, there was always the risk 

that the new rules—and the new authorities granted to the Intelligence 

Community—might have gone too far. 

It is now time to step back and take stock. With the benefit of 

experience, and as detailed below, we conclude that some of the authorities 

that were expanded or created in the aftermath of September 11 unduly 

sacrifice fundamental interests in individual liberty, personal privacy, and 

democratic governance. We believe that our recommended modifications 

of those authorities strike a better balance between the competing interests 

in providing for the common defense and securing “the Blessings of 

Liberty to ourselves and our Posterity.” 

We make these recommendations with a profound sense of caution, 

humility, and respect, and with full awareness that they will require careful 

deliberation and close attention to consequences. There is no doubt that the 

degree of safety and security our nation has enjoyed in the years since 

September 11 has been made possible in no small part by the energetic, 

determined, and effective actions of the Intelligence Community. For that, 

all Americans should be both proud and grateful. But even that degree of 

success does not mean that we cannot strike a better balance for the future. 
78 

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79 

Chapter III 

Reforming Foreign Intelligence Surveillance Directed at 

United States Persons 

A. Introduction 

A central concern of this Report is the need to define an appropriate 

balance between protecting the privacy interests of United States persons 

and protecting the nation’s security. In this chapter, we focus primarily on 

section 215 of FISA and related issues, such as the FBI’s use of national 

security letters, because those issues have received particular attention in 

recent months as a result of disclosures relating to business records. 

The central issue concerns the authority of the government in 

general, and the Intelligence Community in particular, to require thirdparties, such as telephone and Internet companies, to turn over their 

business records to the government. Because the data contained in those 

records can reveal significant information about the private lives of United 

States persons, it is essential to think carefully about the circumstances in 

which the government should have access to those records. 

This chapter also deals with the collection of business records 

containing meta-data. To what extent does the disclosure of information 

about the telephone numbers or e-mails an individual contacts, which 

constitute meta-data, implicate significant privacy interests? In addition, 

this chapter offers recommendations addressing more general questions 

about transparency and secrecy in the activities of the Intelligence 
80 

Community. A central goal of our recommendations is to increase 

transparency and to decrease unnecessary secrecy, in order to enhance both 

accountability and public trust. 

B. Section 215: Background 

Only a week after the September 11 terrorist attacks, the Bush 

Administration proposed the PATRIOT Act to Congress. That legislation, 

which was adopted by an overwhelming vote, made several significant 

changes in FISA.50 Among the most important was the addition of section 

215, which substantially expanded the scope of permissible FISA orders to 

compel third parties to turn over to the government business records and 

other tangible objects. 

As originally enacted in 1978, FISA did not grant the government any 

authority to compel the production of such records. In 1998, however, after 

the Oklahoma City and first World Trade Center bombings, Congress 

amended FISA to authorize the FISC to issue orders compelling the 

production of a narrow set of records from “a common carrier, public 

accommodation facility, physical storage facility or vehicle rental facility” 

for use in “an investigation to gather foreign intelligence information or an 

investigation concerning international terrorism” upon a showing of 

“specific and articulable facts giving reason to believe that the person to 

 

50 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism (“USA PATRIOT Act”) Act of 2001, Pub. L. 107-56, § 215, 115 Stat. 272, 287 (2001) 

(codified as amended at 50 U.S.C. § 1861(a)(1)) (2006 & Supp. V 2011). 
81 

whom the records pertain is a foreign power or an agent of a foreign 

power.”51 

Section 215 of the PATRIOT Act substantially expanded this 

authority in two important ways. First, it eliminated the limitation on the 

types of entities that could be compelled to produce these records and 

authorized the FISC to issue orders compelling the production of “any 

tangible things including books, records, papers, documents, and other 

items.” Second, it changed the standard for the issuance of such orders. 

Instead of requiring the government to demonstrate that it has “specific 

and articulable facts giving reason to believe that the person to whom the 

records pertain is a foreign power or an agent of a foreign power,”52 section 

215 authorized the FISC to issue such orders whenever the government 

sought records for an authorized “investigation to protect against 

international terrorism or clandestine intelligence activities.”53 

This formulation was criticized as being too open-ended, however, 

and Congress thereafter amended section 215 in the USA PATRIOT 

Improvement and Reauthorization Act of 2005, which authorized the FISC 

to issue such orders only if the government provides “a statement of facts 

showing that there are reasonable grounds to believe that the tangible 

objects sought are relevant” to an authorized investigation intended to 

 

51 Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). 

52 Id.

53 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism (“USA PATRIOT Act”) Act of 2001, Pub. L. 107-56, § 215, 115 Stat. 272, 287 (2001) 

(codified as amended at 50 U.S.C. § 1861(a)(1)) (2006 & Supp. V 2011). 
82 

protect “against international terrorism or clandestine intelligence 

activities.”54 

* * * * * * * * 

Is section 215 consistent with the Fourth Amendment? There are two 

concerns. First, section 215 does not require a showing of probable cause. 

The Supreme Court has long held, however, that the “Fourth Amendment 

was not intended to interfere with the power of courts to compel, through a 

subpoena, the production” of evidence, as long as the order compelling the 

production of records or other tangible objects meets the general test of 

“reasonableness.”55 In theory, section 215 extends the principle of the 

subpoena from the traditional criminal investigation into the realm of 

foreign intelligence. 

Second, in many instances section 215 is used to obtain records that 

implicate the privacy interests of individuals whose personal information 

is contained in records held by a third party. This is so, for example, when 

the government seeks to obtain financial information about a particular 

individual from her bank, or telephone calling data about a particular 

individual from her telephone company. In a series of decisions in the 

1970s, the Supreme Court held that individuals have no “reasonable 

expectation of privacy” in information they voluntarily share with third 

 

54 USA PATRIOT Improvement and Reauthorization Act of 2005 § 106, 120 Stat. 196 (codified as amended 

at 50 U.S.C. § 1861(b)(2)(A)). Section 215 provides that such investigations of United States persons may 

not be “conducted solely on the basis of activities protected by the first amendment to the Constitution.” 

For certain materials, such as library records, book sales records, firearms sales records, tax return 

records, educational records, and medical records with information identifying an individual, only the 

Director of the FBI, the Deputy Director of the FBI, or the Executive Assistant for National Security may 

make the application. See 50 U.S.C. § 1863(a)(3) (2006). 

55 Hale v. Henkel, 201 US 43, 76 (1906). 
83 

parties, such as banks and telephone companies, explaining that “what a 

person knowingly exposes” to third parties “is not a subject of Fourth 

Amendment protection.” In Miller v. United States56 the Court applied this 

reasoning to bank records and in Smith v. Maryland57 it extended it to an 

individual’s telephone calling records. 

Those decisions led to the enactment of section 215. In 1978, relying 

on Miller and Smith, Congress enacted the Right to Financial Privacy Act of 

1978.58 Although the Right to Financial Privacy Act generally prohibited 

financial institutions from disclosing personal financial records, it expressly 

authorized them to disclose such records in response to lawful subpoenas 

and search warrants.59 In the national security context, Congress relied 

upon Miller and Smith to give the government important new tools to 

collect foreign intelligence information. 

In 1998, for example, Congress amended FISA to grant the 

government “pen register” and “trap-and-trace” authority.60 A trap-andtrace device identifies the sources of incoming calls and a pen register 

indicates the numbers called from a particular phone number. The 1998 

amendment authorized the FISC to issue orders compelling telephone 

service providers to permit the government to install these devices upon a 

 

56 425 US 435 (1976). 

57 442 US 735 (1979). 

58 Section 1114, Pub. L. 95-630, 92 Stat. 3706 (1978). 

59 Id.

60 50 U.S.C. § 1842. 
84 

showing that the government seeks to obtain information “relevant” to a 

foreign intelligence investigation.61 

That same year, as noted earlier, Congress enacted the precursor of 

section 215, which, as amended, authorizes the FISC to issue orders 

compelling the production of records and other tangible objects from third 

parties whenever the government has “reasonable grounds to believe” that 

the records or “objects sought are relevant” to an authorized investigation 

intended to protect “against international terrorism or clandestine 

intelligence activities.”62 The PATRIOT Act later expanded this authority to 

include sender/addressee information relating to e-mail and other forms of 

electronic communications.63

Although these authorities were made possible by Miller and Smith, 

there is some question today whether those decisions are still good law. In 

its 2012 decision in United States v. Jones,

64 the Court held that long-term 

surveillance of an individual’s location effected by attaching a GPS device 

to his car constituted a trespass and therefore a “search” within the 

meaning of the Fourth Amendment. In reaching this result, five of the 

Justices suggested that the surveillance might have infringed on the 

driver’s “reasonable expectations of privacy” even if there had been no 

technical trespass and even though an individual’s movements in public 

 

61 Id. This is similar to the authority federal law grants to federal and state prosecutors and local police 

officials to obtain court orders for the installation of pen registers and trap-and-trace devices upon 

certification that the information sought is relevant to an ongoing criminal investigation. See 18 U.S.C. § 

3122. 

62 50 U.S.C. § 1861(a)(1). 

63 See 115 Stat. § 288-291 (2001). 

64 132 S.Ct. 945 (2012). 
85 

are voluntarily exposed to third parties. As Justice Sonia Sotomayor 

observed in her concurring opinion, “it may be necessary to reconsider the 

premise that an individual has no reasonable expectation of privacy in 

information voluntarily disclosed to third parties. . . . This approach is illsuited to the digital age, in which people reveal a great deal of information 

about themselves to third parties in the course of carrying out mundane 

tasks. . . . I would not assume that all information voluntarily disclosed to 

[others] for a limited purpose is, for that reason alone, disentitled to Fourth 

Amendment protection.”65

Similarly, Justice Samuel Alito, in a concurring opinion joined by 

Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, declared 

that “‘we must assur[e] preservation of that degree of privacy against 

government that existed when the Fourth Amendment was adopted.’”66

Noting that modern technological advances can seriously undermine our 

traditional expectations of privacy, Justice Alito argued that the Fourth 

Amendment must take account of such changes. Although the Court in 

Jones did not overrule Miller and Smith, and left that issue for another day, 

a majority of the Justices clearly indicated an interest in considering how 

the principle recognized in those decisions should apply in a very different 

technological society from the one that existed in the 1970s. 

However the Supreme Court ultimately resolves the Fourth 

Amendment issue, that question is not before us. Our charge is not to 

interpret the Fourth Amendment, but to make recommendations about 

 

65 Id., at 957 (Sotomayor, J., concurring). 

66 Id., at 950 (Alito, J., concurring), quoting Kyllo v. United States, 533 US 27, 34 (2001). 
86 

sound public policy. In his concurring opinion in Jones, Justice Alito noted 

that “concern about new intrusions on privacy may spur the enactment of 

legislation to protect against these intrusions.” Indeed, he added, at a time 

of “dramatic technological change,” the “best solution to privacy concerns 

may be legislative,” because a “legislative body is well situated to gauge 

changing public attitudes, to draw detailed lines, and to balance privacy 

and public safety in a comprehensive way.”67

C. Section 215 and “Ordinary” Business Records 

Recommendation 1 

We recommend that section 215 should be amended to authorize 

the Foreign Intelligence Surveillance Court to issue a section 215 order 

compelling a third party to disclose otherwise private information about 

particular individuals only if: 

(1) it finds that the government has reasonable grounds to believe 

that the particular information sought is relevant to an 

authorized investigation intended to protect “against 

international terrorism or clandestine intelligence activities” and 

(2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 

As written, section 215 confers essentially subpoena-like power on 

the FISC, granting it the authority to order third parties to turn over to 

federal investigators records and other tangible objects if the government 

presents “a statement of facts showing that there are reasonable grounds to 

 

67 Id., at 964 (Alito, J., concurring). 
87 

believe that the tangible objects sought are relevant” to an authorized 

investigation intended to protect “against international terrorism or 

clandestine intelligence activities.”68 Section 215 makes clear that, in order 

for records and other objects to be obtained under its authority, they must 

be things that “could be obtained with a subpoena issued by a court of the 

United States in aid of a grand jury investigation or with any other order 

issued by a court of the United States directing the production of records or 

tangible things.”69 

There are several points of comparison between the traditional 

subpoena and section 215: (1) section 215 deals with national security 

investigations rather than criminal investigations; (2) section 215 involves 

orders issued by the FISC, whereas subpoenas are issued in other federal 

district court proceedings; (3) because of the sensitive nature of national 

security investigations, the section 215 process involves a high degree of 

secrecy; and (4) section 215’s “relevance” and minimization requirements 

effectively embody a “reasonableness” standard similar to that employed 

in the use of subpoenas. Assuming that the traditional subpoena is an 

appropriate method of gathering evidence, and that it strikes a reasonable 

balance between the interests of privacy and public safety in the context of 

criminal investigations, it might seem that, when used in a similar manner, 

section 215 is also an appropriate method of collecting information in the 

 

68 See 50 U.S.C. § 1861(b)(2)(A). Section 215 provides that such investigations of United States persons 

may not be “conducted solely on the basis of activities protected by the first amendment to the 

Constitution.” 

69 50 U.S.C. § 1861(c)(2)(D). 
88 

context of authorized investigations to protect “against international 

terrorism or clandestine intelligence activities.” 

We do not agree. Whereas the subpoena is typically used to obtain 

records pertaining to an individual or entity relevant to a particular 

criminal investigation, section 215 authorizes the FISC to order the 

production of records or other tangible objects whenever there are 

“reasonable grounds to believe that the tangible things sought are relevant 

to authorized investigations . . . to protect against international terrorism or 

clandestine intelligence activities.” The analogue in the subpoena context 

would be a court order directing banks and credit card companies to turn 

over financial information whenever the police conclude that they have 

“reasonable grounds to believe that the tangible things sought are relevant 

to authorized investigations” of a drug cartel. 

This formulation leaves extremely broad discretion in the hands of 

government officials to decide for themselves whose records to obtain. The 

shift from the 1998 standard to the 2005 standard, which was adopted in 

the wake of the terrorist attacks of September 11, 2001, leaves too little 

authority in the FISC to define the appropriate parameters of section 215 

orders. We believe that, as a matter of sound public policy, it is advisable 

for a neutral and detached judge, rather than a government investigator 

engaged in the “competitive enterprise” of ferreting out suspected 

terrorists,70 to make the critical determination whether the government has 

reasonable grounds for intruding upon the legitimate privacy interests of 

 

70 California v. Acevedo, 500 US 565, 568 (1991). (quoting Johnson v. United States, 333 U.S. 10, 14 (1948). 
89 

any particular individual or organization. The requirement of an explicit 

judicial finding that the order is “reasonable in focus, scope, and breadth” 

is designed to ensure this critical element of judicial oversight. 

D. National Security Letters 

Recommendation 2 

We recommend that statutes that authorize the issuance of National 

Security Letters should be amended to permit the issuance of National 

Security Letters only upon a judicial finding that: 

(1) the government has reasonable grounds to believe that the 

particular information sought is relevant to an authorized 

investigation intended to protect “against international 

terrorism or clandestine intelligence activities” and 

(2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 

Recommendation 3 

We recommend that all statutes authorizing the use of National 

Security Letters should be amended to require the use of the same 

oversight, minimization, retention, and dissemination standards that 

currently govern the use of section 215 orders. 

Shortly after the decision in Miller, Congress created the National 

Security Letter (NSL) as a form of administrative subpoena.71 NSLs, which 

 

71 Administrative subpoenas are authorized by many federal statutes and may be issued by most federal 

agencies. Most statutes authorizing administrative subpoenas authorize an agency to require the 

production of certain records for civil rather than criminal matters.
90 

are authorized by five separate federal statutory provisions,72 empower the 

FBI and other government agencies in limited circumstances to compel 

individuals and organizations to turn over to the FBI in the course of 

national security investigations many of the same records that are covered 

by section 215 and that criminal prosecutors can obtain through subpoenas 

issued by a judge or by a prosecutor in the context of a grand jury 

investigation. NSLs are used primarily to obtain telephone toll records, 

e-mail subscriber information, and banking and credit card records. 

Although NSLs were initially used sparingly, the FBI issued 21,000 NSLs in 

Fiscal Year 2012, primarily for subscriber information. NSLs are most often 

used early in an investigation to gather information that might link 

suspected terrorists or spies to each other or to a foreign power or terrorist 

organization. 

When NSLs were first created, the FBI was empowered to issue an 

NSL only if it was authorized by an official with the rank of Deputy 

Assistant Director or higher in the Bureau’s headquarters, and only if that 

official certified that there were “specific and articulable facts giving reason 

to believe that the customer or entity whose records are sought is a foreign 

power or an agent of a foreign power.”73 The PATRIOT Act of 2001 

significantly expanded the FBI’s authority to issue NSLs. First, the 

PATRIOT Act authorized every Special Agent in Charge of any of the 

Bureau’s 56 field offices around the country to issue NSLs. NSLs therefore 

no longer have to be issued by high-level officials at FBI headquarters. 

 

72 12 U.S.C. § 3414, 15 U.S.C. § 1681(u), 15 U.S.C. § 1681(v), 18 U.S.C. § 2709, and 50 U.S.C. § 436.

73 50 U.S.C. § 1801. 
91 

Second, the PATRIOT Act eliminated the need for any particularized

showing of individualized suspicion.74 Under the PATRIOT Act, the FBI 

can issue an NSL whenever an authorized FBI official certifies that the 

records sought are “relevant to an authorized investigation.” Third, the 

PATRIOT Act empowered the FBI to issue nondisclosure orders 

(sometimes referred to as “gag orders”) that prohibit individuals and 

institutions served with NSLs from disclosing that fact, and it provided for 

the first time for judicial enforcement of those nondisclosure orders.75 In 

contemplating the power granted to the FBI in the use of NSLs, it is 

important to emphasize that NSLs are issued directly by the FBI itself, 

rather than by a judge or by a prosecutor acting under the auspices of a 

grand jury.76 Courts ordinarily enter the picture only if the recipient of an 

NSL affirmatively challenges its legality.77 

NSLs have been highly controversial. This is so for several reasons. 

First, as already noted, NSLs are issued by FBI officials rather than by a 

judge or by a prosecutor in the context of a grand jury investigation. 

Second, as noted, the standard the FBI must meet for issuing NSLs is very 

low. Third, there have been serious compliance issues in the use of NSLs. 

In 2007, the Department of Justice’s Office of the Inspector General detailed 

 

74 Pub. L. 107-56, 115 Stat. 365 (2001). 

75 See 18 U.S.C. § 3511. 

76 It should be noted that there are at least two distinctions between NSLs and federal grand jury 

subpoenas. First, where the FBI believes that records should be sought, it can act directly by issuing 

NSLs, but to obtain a grand jury subpoena the FBI must obtain approval by a prosecutor at the 

Department of Justice. Second, and except in exceptional circumstances, witnesses who appear before a 

grand jury ordinarily are not under nondisclosure orders preventing them from stating that they have 

been called as witnesses. 

77 See David S. Kris and J. Douglas Wilson, I National Security Investigations and Prosecutions 2d, pp. 727-763 

(West 2012). 
92 

extensive misuse of the NSL authority, including the issuance of NSLs 

without the approval of a properly designated official and the use of NSLs 

in investigations for which they had not been authorized.78 Moreover, in 

2008, the Inspector General disclosed that the FBI had “issued [NSLs] . . . 

after the FISA Court, citing First Amendment concerns, had twice declined 

to sign Section 215 orders in the same investigation.”79 Fourth, the 

oversight and minimization requirements governing the use of NSLs are 

much less rigorous than those imposed in the use of section 215 orders.80

Fifth, nondisclosure orders, which are used with 97 percent of all NSLs, 

interfere with individual freedom and with First Amendment rights.81

There is one final—and important— issue about NSLs. For all the 

well-established reasons for requiring neutral and detached judges to 

decide when government investigators may invade an individual’s 

privacy, there is a strong argument that NSLs should not be issued by the 

FBI itself. Although administrative subpoenas are often issued by 

administrative agencies, foreign intelligence investigations are especially 

likely to implicate highly sensitive and personal information and to have 

potentially severe consequences for the individuals under investigation. 

 

78 See Department of Justice, Office of the inspector General, A Review of the Federal Bureau of 

Investigation’s Use of National Security Letters (Unclassified) (March 2007). Note: Subsequent reports from 

the IG have noted the FBI and DOJ have resolved many of the compliance incidents.

79 United States Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of Section 

215 Orders for Business Records in 2006 5 (March 2008), quoted in Kris & Wilson, National Security 

Investigations and Prosecutions at 748. In recent years, the FBI has put in place procedures to reduce the risk 

of noncompliance. 

80 18 U.S.C. § 1861(g). 

81 In Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the court held that the FBI’s use of nondisclosure orders 

violated the First Amendment. In response, the FBI amended its procedures to provide that if a recipient 

of an NSL objects to a non-disclosure order, the FBI must obtain a court order based on a demonstrated 

need for secrecy in order for it to enforce the non-disclosure order. 
93 

We are unable to identify a principled reason why NSLs should be issued 

by FBI officials when section 215 orders and orders for pen register and 

trap-and-trace surveillance must be issued by the FISC. 

We recognize, however, that there are legitimate practical and 

logistical concerns. At the current time, a requirement that NSLs must be 

approved by the FISC would pose a serious logistical challenge. The FISC 

has only a small number of judges and the FBI currently issues an average 

of nearly 60 NSLs per day. It is not realistic to expect the FISC, as currently 

constituted, to handle that burden. This is a matter that merits further 

study. Several solutions may be possible, including a significant expansion 

in the number of FISC judges, the creation within the FISC of several 

federal magistrate judges to handle NSL requests, and use of the Classified 

Information Procedures Act82 to enable other federal courts to issue NSLs. 

We recognize that the transition to this procedure will take some 

time, planning, and resources, and that it would represent a significant 

change from the current system. We are not suggesting that the change 

must be undertaken immediately and without careful consideration. But it 

should take place as soon as reasonably possible. Once the transition is 

complete, NSLs should not issue without prior judicial approval, in the 

absence of an emergency where time is of the essence.83 We emphasize the 

importance of the last point: In the face of a genuine emergency, prior 

 

82 18 U.S.C. app. 3 §§ 1-16. 

83 It is essential that the standards and processes for issuance of NSLs match as closely as possible the 

standards and processes for issuance of section 215 orders. Otherwise, the FBI will naturally opt to use 

NSLs whenever possible in order to circumvent the more demanding – and perfectly appropriate – 

section 215 standards. We reiterate that if judicial orders are required for the issuance of NSLs, there 

should be an exception for emergency situations when time is of the essence. 
94 

judicial approval would not be required under standard and wellestablished principles. 

E. Section 215 and the Bulk Collection of Telephony Meta-data 

1. The Program 

One reading of section 215 is that the phrase “reasonable grounds to 

believe that the tangible things sought are relevant to an authorized 

investigation” means that the order must specify with reasonable 

particularity the records or other things that must be turned over to the 

government. For example, the order might specify that a credit card 

company must turn over the credit records of a particular individual who 

is reasonably suspected of planning or participating in terrorist activities, 

or that a telephone company must turn over to the government the call 

records of any person who called an individual suspected of carrying out a 

terrorist act within a reasonable period of time preceding the terrorist act. 

This interpretation of “relevant” would be consistent with the traditional 

understanding of “relevance” in the subpoena context. 

In May 2006, however, the FISC adopted a much broader 

understanding of the word “relevant.”84 It was that decision that led to the 

collection of bulk telephony meta-data under section 215. In that decision, 

and in thirty-five decisions since, fifteen different FISC judges have issued 

orders under section 215 directing specified United States 

telecommunications providers to turn over to the FBI and NSA, “on an 

 

84 See In re Application of the Federal Bureau of Investigation for an Order Requiring the Prod. Of Tangible Things 

from [Telecommunications Providers] Relating to [Redacted version], Order No. BR-05 (FISC May 24, 2006). 
95 

ongoing daily basis,” for a period of approximately 90 days, “all call detail 

records or ‘telephony meta-data’ created by [the provider] for 

communications (i) between the United States and abroad; or (ii) wholly 

within the United States, including local telephone calls.”85 

The “telephony meta-data” that must be produced includes 

“comprehensive communications routing information, including but not 

limited to session identifying information (e.g., originating and terminating 

telephone number, International Mobile Subscriber Identity (IMSI) 

number, International Mobile Station Equipment Identity (IMEI) number, 

etc.), trunk identifier, telephone calling card numbers, and time and 

duration of call.”86 The orders expressly provide that the meta-data to be 

produced “does not include the substantive content of any communication 

. . . or the name, address, or financial information of a subscriber or 

customer,” nor does it include “cell site location information.”87 The orders 

also contain a nondisclosure provision directing that, with certain 

exceptions, “no person shall disclose to any other person that the FBI or 

NSA has sought or obtained tangible things under this Order.”88 

The FISC authorized the collection of bulk telephony meta-data 

under section 215 in reliance “on the assertion of the [NSA] that having 

access to all the call records ‘is vital to NSA’s counterterrorism intelligence’ 

because ‘the only effective means by which NSA analysts are able 

 

85 In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible 

Things from [Undisclosed Service Provider], Docket Number: BR 13-109 (FISC Oct. 11, 2013) (hereinafter 

FISC order 10/11/2013).

86 Id. 

87 Id. 

88 Id. 
96 

continuously to keep track of’” the activities, operatives, and plans of 

specific foreign terrorist organizations who “disguise and obscure their 

communications and identities” is “‘to obtain and maintain an archive of 

meta-data that will permit these tactics to be uncovered.’”89 The 

government has explained the rationale of the program as follows: 

One of the greatest challenges the United States faces in 

combating international terrorism and preventing potentially 

catastrophic terrorist attacks on our country is identifying 

terrorist operatives and networks, particularly those operating 

within the United States. Detecting threats by exploiting 

terrorist communications has been, and continues to be, one of 

the critical tools in this effort. It is imperative that we have the 

capability to rapidly identify any terrorist threat inside the 

United States. . . . 

. . . By analyzing telephony meta-data based on telephone 

numbers or other identifiers associated with terrorist activity, 

trained expert analysts can work to determine whether known 

or suspected terrorists have been in contact with individuals in 

the United States. . . . In this respect, the program helps to close 

critical intelligence gaps that were highlighted by the 

September 11, 2001 attacks.90

 

89 In Re Production of Tangible Things from [Undisclosed Service Provider], Docket Number: BR-08-13 (FISC 

Dec. 12, 2008), quoting Application Exhibit A, Declaration of [Redacted version] (Dec. 11, 2008). 

90Administration White Paper, Bulk Collection of Telephony Meta-data Under Section 215 of the USA 

PATRIOT Act, at 3-4 (August 9, 2013). 
97 

What this means, in effect, is that specified service providers must 

turn over to the government on an ongoing basis call records for every 

telephone call made in, to, or from the United States through their 

respective systems. NSA retains the bulk telephony meta-data for a period 

of five years. The meta-data are then purged automatically from NSA’s 

systems on a rolling basis. As it currently exists, the section 215 program 

acquires a very large amount of telephony meta-data each day, but what it 

collects represents only a small percentage of the total telephony meta-data 

held by service providers. Importantly, in 2011 NSA abandoned a similar 

meta-data program for Internet communications. 91

According to the terms of the FISC orders, the following restrictions 

govern the use of this telephony meta-data: 

1. “NSA shall store and process the . . . meta-data in 

repositories with secure networks under NSA’s control. The 

. . . meta-data shall carry unique markings such that 

software and other controls (including user authentication 

services) can restrict access to it to authorized personnel who 

have received appropriate and adequate training,” and 

 

91 For several years, NSA used a similar meta-data program for Internet communications under the 

authority of FISA’s pen register and trap-and-trace provisions rather than under the authority of section 

215. NSA suspended this e-mail meta-data program in 2009 because of compliance issues (it came to light 

that NSA had inadvertently been collecting certain types of information that were not consistent with the 

FISC’s authorization orders). After re-starting it in 2010, NSA Director General Keith Alexander decided 

to let the program expire at the end of 2011 because, for operational and technical reasons, the program 

was insufficiently productive to justify the cost. The possibility of revising and reinstituting such a 

program was left open, however. This program posed problems similar to those posed by the section 215 

program, and any effort to re-initiate such a program should be governed by the same recommendations 

we make with respect to the section 215 program. 
98 

“NSA shall restrict access to the . . . meta-data to authorized 

personnel who have received” such training. 

2. “The government is . . . prohibited from accessing” the metadata “for any purpose” other than to obtain “foreign 

intelligence information.”92

3. “NSA shall access the . . . meta-data for purposes of 

obtaining foreign intelligence only through queries of the . . . 

meta-data to obtain contact chaining information . . . using 

selection terms approved as ‘seeds’ pursuant to the RAS 

approval process.” What this means is that NSA can access 

the meta-data only when “there are facts giving rise to a 

reasonable, articulable suspicion (RAS) that the selection 

term to be queried,” that is, the specific phone number, “is 

associated with” a specific foreign terrorist organization. The 

government submits and the FISC approves a list of specific 

foreign terrorist organizations to which all queries must 

relate. 

4. The finding that there is a reasonable, articulable suspicion 

that any particular identifier is associated with a foreign 

terrorist organization can be made initially by only one of 22 

specially trained persons at NSA (20 line personnel and two 

supervisors). All RAS determinations must be made 

 

92 Appropriately trained and authorized technical personnel may also access the meta-data “to perform 

those processes needed to make it usable for intelligence analysis,” and for related technical purposes, 

according to the FISC orders. 
99 

independently by at least two of these personnel and then 

approved by one of the two supervisors before any query 

may be made. 

5. Before any selection term may be queried, NSA’s Office of 

General Counsel (OGC) “must first determine” whether it is 

“reasonably believed to be used by a United States 

person.”93 If so, then the selection term may not be queried if 

the OGC finds that the United States person was found be to 

“associated with” a specific foreign terrorist organization 

“solely on the basis of activities that are protected by the 

First Amendment to the Constitution.” 

6. “NSA shall ensure, through adequate and appropriate 

technical and management controls, that queries of the . . . 

meta-data for intelligence analysis purposes will be initiated 

using only selection terms that have been RAS-approved. 

Whenever the . . . meta-data is accessed for foreign 

intelligence analysis purposes or using foreign intelligence 

analysis tools, an auditable record of the activity shall be 

generated.” 

7. The determination that a particular selection term may be 

queried remains in effect for 180 days if the selection term is 

reasonably believed to be used by a United States person, 

and otherwise for one year. 

 

93 50 U.S.C. 1801(i). A “United States person” is either a citizen of the United States or a non-citizen who 

is a legal permanent resident of the United States. 
100 

8. Before any of the results from queries may be shared outside 

NSA (typically with the FBI), NSA must comply with 

minimization and dissemination requirements, and before 

NSA may share any results from queries that reveal 

information about a United States person, a high-level 

official must additionally determine that the information “is 

in fact related to counterterrorism information and that it is 

necessary to understand the counterterrorism information or 

assess its importance.” 

9. The FISA court does not review or approve individual 

queries either in advance or after the fact. It does set the 

criteria for queries, however, and it receives reports every 30 

days from NSA on the number of identifiers used to query 

the meta-data and on the results of those queries. The 

Department of Justice and the Senate and House Intelligence 

Committees also receive regular briefings on the program. 

10. Both NSA and the National Security Division of the 

Department of Justice (NSD/DOJ) conduct regular and 

rigorous oversight of this program. For example: 

• NSA’s OGC and Office of the Director of Compliance 

(ODOC) “shall ensure that personnel with access to the 

 . . . meta-data receive appropriate and adequate training 

and guidance regarding the procedures and restrictions 

for collection, storage, analysis, dissemination, and 
101 

retention of the . . . meta-data and the results of queries of 

the . . . meta-data.”94 

• NSD/DOJ receives “all formal briefing and/or training 

materials.” NSA’s ODOC “shall monitor the 

implementation and use of the software and other 

controls (including user authentication services) and the 

logging of auditable information.”95 

• NSA’s OGC “shall consult with NSD/DOJ “on all 

significant legal opinions that relate to the interpretation, 

scope, and/or implementation of this authority,” and at 

least once every ninety days NSA’s OGC, ODOC and 

NSD/DOJ “shall meet for the purpose of assessing 

compliance” with the FISC’s orders. The results of that 

meeting “shall be reduced to writing and submitted” to 

the FISC “as part of any application to renew or reinstate 

the authority.”96 

• At least once every 90 days “NSD/DOJ shall meet with 

NSA’s Office of the Inspector General to discuss their 

respective oversight responsibilities and assess NSA’s 

compliance” with the FISC’s orders, and at least once 

every 90 days NSA’s OGC and NSD/DOJ “shall review a 

 

94 In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible 

Things from [Undisclosed Service Provider], Docket Number: BR 13-158 (FISC, Dec. 2011). 

95 Id., at 14.

96 Id., at 14-15. 
102 

sample of the justifications for RAS approvals for 

selection terms used to query the . . . meta-data.”97 

• Approximately every 30 days, NSA must file with the 

FISC “a report that includes a discussion of NSA’s 

application of the RAS standard,” “a statement of the 

number of instances . . . in which NSA has shared, in any 

form, results from queries of the . . . meta-data that 

contain United States person information, in any form, 

with anyone outside NSA,” and an attestation for each 

instance in which United States information has been 

shared that “the information was related to 

counterterrorism information and necessary to 

understand counterterrorism or to assess its 

importance.”98 

How does the section 215 bulk telephony meta-data program work in 

practice? In 2012, NSA queried 288 unique identifiers, each of which was 

certified by NSA analysts to meet the RAS standard. When an identifier, or 

“seed” phone number, is queried, NSA receives a list of every telephone 

number that either called or was called by the seed phone number in the 

past five years. This is known as the “first hop.” For example, if the seed 

phone number was in contact with 100 different phone numbers in the past 

five years, NSA would have a list of those phone numbers. Given that NSA 

 

97 Id., at 15.

98 In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible 

Things from [Undisclosed Service Provider], Docket Number: BR 13-109 (FISC Oct. 11, 2013) (hereinafter 

FISC order 10/11/2013).
103 

has reasonable articulable suspicion to believe that the seed phone number 

is associated with a foreign terrorist organization, it then seeks to 

determine whether there is any reason to believe that any of the 100 

numbers are also associated with a foreign terrorist organization. If so, the 

query has uncovered possible connections to a potential terrorist network 

that merits further investigation. Conversely, if none of the 100 numbers in 

the above hypothetical is believed to be associated with possible terrorist 

activity, there is less reason to be concerned that the potential terrorist is in 

contact with co-conspirators in the United States. 

In most cases, NSA makes a second “hop.” That is, it queries the 

database to obtain a list of every phone number that called or was called by 

the 100 numbers it obtained in the first hop. To continue with the 

hypothetical: If we assume that the average telephone number called or 

was called by 100 phone numbers over the course of the five-year period, 

the query will produce a list of 10,000 phone numbers (100 x 100) that are 

two “hops” away from the person reasonably believed to be associated 

with a foreign terrorist organization. If one of those 10,000 phone numbers 

is thought to be associated with a terrorist organization, that is potentially 

useful information not only with respect to the individuals related to the 

first and third hops, but also with respect to individuals related to the 

second hop (the middleman). In a very few instances, NSA makes a third 

“hop,” which would expand the list of numbers to approximately one 

million (100 x 100 x 100). 
104 

In 2012, NSA’s 288 queries resulted in a total of twelve “tips” to the 

FBI that called for further investigation. If the FBI investigates a telephone 

number or other identifier tipped to it through the section 215 program, it 

must rely on other information to identify the individual subscribers of any 

of the numbers retrieved. If, through further investigation, the FBI is able to 

develop probable cause to believe that an identifier in the United States is 

conspiring with a person engaged in terrorist activity, it can then seek an 

order from the FISC authorizing it to intercept the contents of future 

communications to and from that telephone number. 

NSA believes that on at least a few occasions, information derived 

from the section 215 bulk telephony meta-data program has contributed to 

its efforts to prevent possible terrorist attacks, either in the United States or 

somewhere else in the world. More often, negative results from section 215 

queries have helped to alleviate concern that particular terrorist suspects 

are in contact with co-conspirators in the United States. Our review 

suggests that the information contributed to terrorist investigations by the 

use of section 215 telephony meta-data was not essential to preventing 

attacks and could readily have been obtained in a timely manner using 

conventional section 215 orders. Moreover, there is reason for caution 

about the view that the program is efficacious in alleviating concern about 

possible terrorist connections, given the fact that the meta-data captured by 

the program covers only a portion of the records of only a few telephone 

service providers. 

* * * * * * * * * 
105 

The bulk telephony meta-data collection program has experienced 

several significant compliance issues. For example, in March 2009, the FISC 

learned that for two-and-a-half years NSA had searched all incoming 

phone meta-data using an “alert list” of phone numbers of possible 

terrorists that had been created for other purposes. Almost 90 percent of 

the numbers on the alert list did not meet the “reasonable, articulable 

suspicion” standard.99 

FISC Judge Reggie Walton concluded that the minimization 

procedures had been “so frequently and systematically violated that it can 

fairly be said that this critical element of the overall . . . regime has never 

functioned effectively.”100 Although finding that the noncompliance was 

unintentional, and was due to misunderstandings on the part of analysts 

about the precise rules governing their use of the meta-data, Judge Walton 

concluded “that the government’s failure to ensure that responsible 

officials adequately understood NSA’s alert list process, and to accurately 

report its implementation to the Court, has prevented, for more than two 

years, both the government and the FISC from taking steps to remedy daily 

violations of the minimization procedures set forth in FISC orders and 

designed to protect . . . call details pertaining to telephone communications 

of US persons located within the United States who are not the subject of 

 

99 In Re Production of Tangible Things From [Undisclosed Service Provider, Docket Number: BR 08-13 (March 

2, 2009). 

100 Id.
106 

any . . . investigation and whose call detail information could not otherwise 

have been legally captured in bulk.”101

Judge Walton found additional compliance issues involving incidents 

in which inadequately trained analysts “had queried the . . . meta-data . . . . 

‘without being aware they were doing so.’”102 As a result, “NSA analysts 

used 2,373 foreign telephone identifiers to query the . . . meta-data without 

first determining that the reasonable, articulable suspicion standard had 

been satisfied.” Judge Walton concluded that “the minimization 

procedures” that had been “approved and adopted as binding by the 

orders of the FISC have been so frequently and systematically violated that 

it can fairly be said that this critical element of the overall [bulk telephony 

meta-data] regime has never functioned effectively.”103

Although NSA maintained that, upon learning of these 

noncompliance incidents, it had taken remedial measures to prevent them 

from recurring, Judge Walton rejected the government’s argument that, in 

light of these measures, “the Court need not take any further remedial 

action.” Because it had become apparent that “NSA’s data accessing 

technologies and practices were never adequately designed to comply with 

the governing minimization procedures,” NSA Director General Keith 

Alexander conceded that “there was no single person who had a complete 

understanding of the [section 215] FISA system architecture.”104 

 

101 Id. 

102 Id. 

103 Id.

104 Id. 
107 

In light of that concession and other information, Judge Walton held 

that “the Court will not permit the government to access the data collected 

until such time as the government is able to restore the Court’s confidence 

that the government can and will comply with [the] approved procedures 

for accessing such data.” Until such time, the government would be 

permitted to access the data only subject to a FISC order authorizing a 

specific query “on a case-by-case” basis premised on a RAS finding by the 

FISC itself.105

Judge Walton lifted this restriction in September 2009 after NSA 

demonstrated to his satisfaction that the causes of the noncompliance had 

been corrected and that additional safeguards had been instituted to 

reduce the possibility of similar incidents of noncompliance in the future.106 

* * * * * * * * * 

It is noteworthy that, after the bulk telephony meta-data program 

came to light in the summer of 2013, some commentators argued that the 

program is both unconstitutional and beyond the scope of what Congress 

authorized. The constitutional argument turns largely on whether Miller

and Smith are still good law and on whether they should control the 

collection of bulk telephony meta-data. In a recent FISC opinion, Judge 

Mary A. McLaughlin acknowledged that the “Supreme Court may 

someday revisit the third-party disclosure principle in the context of 

twenty-first century communications technology,” but concluded that until 

that day arrives, “Smith remains controlling with respect to the acquisition 

 

105 See In re Production of Tangible Things From [Redacted version], No. BR-09-13 (FISC, September 3, 2009).

106 Id.
108 

by the government from service providers of non-content telephony metadata.”107

The statutory objection asserts that the FISC’s interpretation of 

section 215 does violence to the word “relevant.” Some commentators have 

noted that, although courts have upheld relatively broad subpoenas in the 

context of civil actions, administrative proceedings and grand jury 

investigations, “no single subpoena discussed in a reported decision is as 

broad as the FISC’s telephony meta-data orders.”108 Nonetheless, in a 

recent FISC decision, Judge Claire V. Eagen concluded that the bulk 

telephony meta-data program meets what she described as “the low 

statutory hurdle set out in Section 215.”109 Our charge is not to resolve 

these questions, but to offer guidance from the perspective of sound public 

policy as we look to the future. 

2. The Mass Collection of Personal Information 

Recommendation 4 

We recommend that, as a general rule, and without senior policy 

review, the government should not be permitted to collect and store all 

mass, undigested, non-public personal information about individuals to 

enable future queries and data-mining for foreign intelligence purposes. 

Any program involving government collection or storage of such data 

must be narrowly tailored to serve an important government interest. 

 

107 In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible 

Things From [Redacted version], Docket No. BR 13-158 (FISC Oct. 11, 2013), pp. 5-6. 

108 David S. Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Research Paper Series 4 at 26 (Sept. 

29, 2013). 

109 In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible 

Things From [Redacted version], Docket No. BR 13-109 (FISC Aug. 29, 2013).
109 

We will turn shortly to the section 215 bulk telephony meta-data 

program. But to orient that discussion and to establish governing 

principles, we begin with a broader question, which involves the 

production not only of telephone calling records, but also of every other 

type of record or other tangible thing that could be obtained through a 

traditional subpoena, including bank records, credit card records, medical 

records, travel records, Internet search records, e-mail records, educational 

records, library records, and so on. 

Our focus, then, is on genuinely mass collections of all undigested, 

non-public personal information about individuals – those collections that 

involve not a selected or targeted subset (such as airline passenger lists), 

but far broader collections. Although the government has expressly 

disclaimed any interest in such mass collection of personal information 

under section 215,110 nothing in the statute, as interpreted by the FISC, 

would necessarily preclude such a program. The question is whether such 

a program, even if consistent with the Fourth Amendment and section 215, 

would be sound public policy. 

Because international terrorists inevitably leave footprints when they 

recruit, train, finance, and plan their operations, government acquisition 

and analysis of such personal information might provide useful clues about 

their transactions, movements, behavior, identities and plans. It might, in 

 

110 See Kris, On the Bulk Collection of Tangible Things, p. 34. Indeed, the government has suggested that 

“communications meta-data is different from many other kinds of records because it is inter-connected 

and the connections between individual data points, which can be reliably identified only through 

analysis of a large volume of data, are particularly important to a broad range of investigations of 

international terrorism.” Administration White Paper, p. 2. 
110 

other words, help the government find the proverbial needles in the 

haystack. But because such information overwhelmingly concerns the 

behavior of ordinary, law-abiding individuals, there is a substantial risk of 

serious invasions of privacy. 

As a report of the National Academy of Sciences (NAS) has observed, 

the mass collection of such personal information by the government would 

raise serious “concerns about the misuse and abuse of data, about the 

accuracy of the data and the manner in which the data are aggregated, and 

about the possibility that the government could, through its collection and 

analysis of data, inappropriately influence individuals’ conduct.”111

According to the NAS report, “data and communication streams” are 

ubiquitous: 

[They] concern financial transactions, medical records, 

travel, communications, legal proceedings, consumer 

preferences, Web searches, and, increasingly, behavior and 

biological information. This is the essence of the information 

age—. . . everyone leaves personal digital tracks in these 

systems whenever he or she makes a purchase, takes a trip, 

uses a bank account, makes a phone call, walks past a security 

camera, obtains a prescription, sends or receives a package, files 

income tax forms, applies for a loan, e-mails a friend, sends a 

fax, rents a video, or engages in just about any other activity 

. . . . Gathering and analyzing [such data] can play major roles 

 

111 National Research Council of the National Academy of Science, Protecting Individual Privacy in the 

Struggle Against Terrorists: A Framework for Program Assessment, pp. 2-3 (National Academies Press 2008). 
111 

in the prevention, detection, and mitigation of terrorist attacks. . 

. . [But even] under the pressures of threats as serious as 

terrorism, the privacy rights and civil liberties that are 

cherished core values of our nation must not be destroyed. . . . 

One . . . concern is that law-abiding citizens who come to 

believe that their behavior is watched too closely by 

government agencies . . . may be unduly inhibited from 

participating in the democratic process, may be inhibited from 

contributing fully to the social and cultural life of their 

communities, and may even alter their purely private and 

perfectly legal behavior for fear that discovery of intimate 

details of their lives will be revealed and used against them in 

some manner.112

Despite these concerns, several arguments can be made in support of 

allowing the government to collect and access all of this information. First, 

one might argue, building on the logic of Miller and Smith, that individuals 

are not concerned about the privacy of such matters because, if they were, 

they would not voluntarily make the information available to their banks, 

credit card companies, Internet service providers, telephone companies, 

health-care providers, and so on. 

Whatever the logic of this argument in the Fourth Amendment 

context, it seems both unrealistic and unsound as a matter of public policy. 

In modern society, individuals, for practical reasons, have to use banks, 

 

112 Id.
112 

credit cards, e-mail, telephones, the Internet, medical services, and the like. 

Their decision to reveal otherwise private information to such third parties 

does not reflect a lack of concern for the privacy of the information, but a 

necessary accommodation to the realities of modern life. What they want—

and reasonably expect—is both the ability to use such services and the right 

to maintain their privacy when they do so. As a matter of sound public 

policy in a free society, there is no reason why that should not be possible. 

Second, one might argue that there is nothing to fear from such a 

program because the government will query the information database only 

when it has good reasons for doing so. Assume, for example, that the 

government has legal authority to query the hypothetical mass information 

database only when it can demonstrate facts that give rise to a reasonable, 

articulable suspicion that the target of the query is associated with a foreign 

terrorist organization. That restriction certainly reduces the concern about 

widespread invasions of privacy because it would deny the government 

legal authority to query the database to obtain private information about 

individuals for other, less worthy—and perhaps illegitimate—reasons. 

But this does not eliminate the concern. For one thing, under any 

such standard there will inevitably be many queries of individuals who are 

not in fact involved with terrorist organizations. This is the false positive—

or inadvertent acquisition—problem. Whenever the government 

investigates individuals on grounds less demanding than absolute 

certainty of guilt, there will inevitably be false positives. Even when the 

government has a warrant based on a judicial finding of probable cause, 
113 

innocent persons will often be searched because probable cause is a far cry 

from absolute certainty. 

One way to mitigate this concern would be to elevate the standard 

for lawful queries under section 215 from reasonable articulable suspicion 

to probable cause. But even that would leave privacy at risk. This is so 

because, in traditional searches, the government does not discover 

everything there is to know about an individual. The enormity of the breach 

of privacy caused by queries of the hypothetical mass information database 

dwarfs the privacy invasion occasioned by more traditional forms of 

investigation. For the innocent individual who is unlucky enough to be 

queried under even a probable cause standard, virtually everything about 

his life instantly falls into the hands of government officials. The most 

intimate details of his life are laid bare. 

Moreover, and perhaps more important, there is the lurking danger 

of abuse. There is always a risk that the rules, however reasonable in 

theory, will not be followed in practice. This might happen because an 

analyst with access to the information decides to query an innocent 

individual for any number of possible reasons, ranging from personal 

animosity to blackmail to political opposition. Although the safeguards in 

place under section 215 attempt to prevent such abuse, no system is perfect. 

We have seen that even under section 215, with all of its safeguards, there 

have been serious issues of noncompliance. A breach of privacy might also 

happen because an outsider manages to invade the database, thereby 

accessing and then either using or publicly disclosing reams of information 
114 

about particular individuals or, in the nightmare scenario, making the 

entire system transparent to everyone. 

Finally, we cannot discount the risk, in light of the lessons of our own 

history, that at some point in the future, high-level government officials 

will decide that this massive database of extraordinarily sensitive private 

information is there for the plucking. Americans must never make the 

mistake of wholly “trusting” our public officials. As the Church Committee 

observed more than 35 years ago, when the capacity of government to 

collect massive amounts of data about individual Americans was still in its 

infancy, the “massive centralization of . . . information creates a temptation 

to use it for improper purposes, threatens to ‘chill’ the exercise of First 

Amendment rights, and is inimical to the privacy of citizens.”113

Third, one might argue that, despite these concerns, the hypothetical 

mass collection of personal information would make it easier for the 

government to protect the nation from terrorism, and it should therefore be 

permitted. We take this argument seriously. But even if the premise is true, 

the conclusion does not necessarily follow. Every limitation on the 

government’s ability to monitor our conduct makes it more difficult for the 

government to prevent bad things from happening. As our riskmanagement principle suggests, the question is not whether granting the 

government authority makes us incrementally safer, but whether the 

additional safety is worth the sacrifice in terms of individual privacy, 

personal liberty, and public trust. 

 

113 Church Committee Report at 778 (April 1976). 
115 

Although we might be safer if the government had ready access to a 

massive storehouse of information about every detail of our lives, the 

impact of such a program on the quality of life and on individual freedom 

would simply be too great. And this is especially true in light of the 

alternative measures available to the government. Specifically, even if the 

government cannot collect and store for future use massive amounts of 

personal information about our lives, it would still be free under section 

215 to obtain specific information relating to specific individuals or specific

terrorist threats from banks, telephone companies, credit card companies, 

and the like—when it can demonstrate to the FISC that it has reasonable 

grounds to access such information. 

3. Is Meta-data Different? 

Recommendation 5 

We recommend that legislation should be enacted that terminates 

the storage of bulk telephony meta-data by the government under 

section 215, and transitions as soon as reasonably possible to a system in 

which such meta-data is held instead either by private providers or by a 

private third party. Access to such data should be permitted only with a 

section 215 order from the Foreign Intelligence Surveillance Court that 

meets the requirements set forth in Recommendation 1. 

Under section 215 as interpreted by the FISC, NSA is authorized to 

collect bulk telephony meta-data and to store the call records of every

telephone call made in, to, or from the United States, and it is then 

permitted to query that meta-data if it has a reasonable, articulable 
116 

suspicion that a particular phone number, or “seed,” usually a telephone 

number belonging to a person outside the United States, is associated with 

a foreign terrorist organization. Section 215 as interpreted authorizes the 

collection and retention only of telephony meta-data. Should that limitation 

make the program permissible? 

We do not believe so. There are two distinctions between the 

hypothetical and actual versions of section 215. First, the total amount of 

data collected and retained in the hypothetical version of section 215 is 

much greater than the total amount of data collected and retained in the 

actual version. This means that the possible harm caused by the collection 

and the possible benefit derived from the collection are both reduced. 

Everything else being equal, this suggests that the balance between costs 

and benefits is unchanged.114 

Second, and more important, it is often argued that the collection of 

bulk telephony meta-data does not seriously threaten individual privacy, 

because it involves only transactional information rather than the content 

of the communications. Indeed, this is a central argument in defense of the 

existing program. It does seem reasonable to assume that the intrusion on 

privacy is greater if the government collects the content of every telephone 

call made in, to, or from the United States than if it collects only the call 

information, or meta-data. But as critics of the bulk collection of telephony 

meta-data have observed, the record of every telephone call an individual 

 

114 It is possible, of course, for the government carefully to target its collection and retention of data in a 

way that maximizes the benefit and minimizes the cost, thereby substantially altering the balance of costs 

and benefits. But there is no reason to believe that this describes the decision to collect bulk telephony 

meta-data, in particular. 
117 

makes or receives over the course of several years can reveal an enormous 

amount about that individual’s private life. 

We do not mean to overstate either the problem or the risks. In our 

review, we have not uncovered any official efforts to suppress dissent or 

any intent to intrude into people’s private lives without legal justification. 

NSA is interested in protecting the national security, not in personal details 

unrelated to that concern. But as as Justice Sotomayor observed about GPS 

monitoring of locational information in Jones, telephone calling data can 

reveal “a wealth of detail” about an individual’s “familial, political, 

professional, religious, and sexual associations.”115 It can reveal calls “to the 

psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment 

center, the strip club, the criminal defense attorney, the by-the-hour-motel, 

the union meeting, the mosque, synagogue or church, the gay bar, and on 

and on.”116 

Knowing that the government has ready access to one’s phone call 

records can seriously chill “associational and expressive freedoms,” and 

knowing that the government is one flick of a switch away from such 

information can profoundly “alter the relationship between citizen and 

government in a way that is inimical to society.”117 That knowledge can 

significantly undermine public trust, which is exceedingly important to the 

well-being of a free and open society. 

 

115 United States v. Jones, 132 S.Ct. 945, 955 (2012) (Sotomayor, J., concurring).

116 Id. 

117 Id. at 956 (Sotomayor, J., concurring) (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (C.A. 7, 

2011) (Flaum, J., concurring).
118 

Moreover, and importantly, even without collecting and storing bulk 

telephony meta-data itself, there are alternative ways for the government to 

achieve its legitimate goals, while significantly limiting the invasion of 

privacy and the risk of government abuse. As originally envisioned when 

section 215 was enacted, the government can query the information 

directly from the relevant service providers after obtaining an order from 

the FISC. Although this process might be less efficient for the government, 

NSA Director General Keith Alexander informed the Review Group that 

NSA itself has seriously considered moving to a model in which the data 

are held by the private sector. This change would greatly reduce the intake 

of telephony meta-data by NSA, and it would therefore also dramatically 

(and in our view appropriately) reduce the risk, both actual and perceived, 

of government abuse. 

We recognize that there might be problems in querying multiple, 

privately held data bases simultaneously and expeditiously. In our view, 

however, it is likely that those problems can be significantly reduced by 

creative engineering approaches. We also recognize that there might be 

issues about the length of time that some carriers ordinarily would retain 

such meta-data and about the financial costs that might be placed on 

telephony providers by the approach we recommend. But we think that it 

would be in the interests of the providers and the government to agree on a 
119 

voluntary system that meets the needs of both. If a voluntary approach is 

not successful, then implementing legislation might be required.118

If reliance on government queries to individual service providers 

proves to be so inefficient that it seriously undermines the effectiveness of 

the program, and if the program is shown to be of substantial value to our 

capacity to protect the national security of the United States and our allies, 

then the government might authorize a specially designated private 

organization to collect and store the bulk telephony meta-data. NSA could 

then query the meta-data from that independent entity in the same manner 

that it could query the meta-data from the service providers. The use of 

such a private organization to collect and store bulk telephony meta-data 

should be implemented only if expressly authorized by Congress. 

In light of these alternatives, we conclude that there is no sufficient 

justification for allowing the government itself to collect and store bulk 

telephony meta-data.119 We recommend that this program should be 

terminated as soon as reasonably practicable. 

 

118 For example, Congress might enact legislation requiring relevant telephone providers to retain the 

data for a specified period of time to ensure that it will be available if and when the government needs to 

query it. In that case, the government should reimburse the providers for the cost of retaining the data. 

Based on our review, an appropriate period of time would seem to be no more than two years. A Federal 

Commnications Commission (FCC) regulation already requires providers to hold such information for 18 

months, so it seems feasible to change the retention period for telephone records. The FCC’s rule on 

retention of telephone toll records is 47 C.F.R. § 42.6: “Retention of telephone toll records. Each carrier 

that offers or bills toll telephone service shall retain for a period of 18 months such records as are 

necessary to provide the following billing information about telephone toll calls: the name, address, and 

telephone number of the caller, telephone number called, date, time, and length of the call. Each carrier 

shall retain this information for toll calls that it bills whether it is billing its own toll service customers for 

toll calls or billing customers for another carrier. 60 Fed. Reg. 2d 1529 (1986); 51 FR 32651, corrected, 51 FR 

39536. 

119 It is noteworthy that the section 215 telephony meta-data program has made only a modest 

contribution to the nation’s security. It is useful to compare it, for example, to the section 702 program, 

which we discuss in the next Part of our Report. Whereas collection under section 702 has produced 
120 

Recommendation 6 

We recommend that the government should commission a study of 

the legal and policy options for assessing the distinction between metadata and other types of information. The study should include 

technological experts and persons with a diverse range of perspectives, 

including experts about the missions of intelligence and law 

enforcement agencies and about privacy and civil liberties. 

Are there any circumstances in which the government should be 

permitted to collect and retain meta-data in which it could not collect and 

retain other information? One question concerns the meaning of “metadata.” In the telephony context, “meta-data” refers to technical information 

about the phone numbers, routing information, duration of the call, time of 

the call, and so forth. It does not include information about the contents of 

the call. In the e-mail context, “meta-data” refers to the “to” and “from” 

lines in the e-mail and technical details about the e-mail, but not the subject 

line or the content. The assumption behind the argument that meta-data is 

meaningfully different from other information is that the collection of 

meta-data does not seriously invade individual privacy. 

As we have seen, however, that assumption is questionable. In a 

world of ever more complex technology, it is increasingly unclear whether 

the distinction between “meta-data” and other information carries much 

 

significant information in many, perhaps most, of the 54 situations in which signals intelligence has 

contributed to the prevention of terrorist attacks since 2007, section 215 has generated relevant 

information in only a small number of cases, and there has been no instance in which NSA could say with 

confidence that the outcome would have been different without the section 215 telephony meta-data 

program. Moreover, now that the existence of the program has been disclosed publicly, we suspect that it 

is likely to be less useful still. 
121 

weight.120 The quantity and variety of meta-data have increased. In 

contrast to the telephone call records at issue in the 1979 case of Smith v. 

Maryland,

121 today’s mobile phone calls create meta-data about a person’s 

location. Social networks provide constant updates about who is 

communicating with whom, and that information is considered meta-data 

rather than content. E-mails, texts, voice-over-IP calls, and other forms of 

electronic communication have multiplied. For Internet communications in 

general, the shift to the IPv6 protocol is well under way. When complete, 

web communications will include roughly 200 data fields, in addition to 

the underlying content. Although the legal system has been slow to catch 

up with these major changes in meta-data, it may well be that, as a practical 

matter, the distinction itself should be discarded. 

The question about how to govern content and meta-data merits 

further study. Such a study should draw on the insights of technologists, 

due to the central role of changing technology. Economists and other social 

scientists should help assess the costs and benefits of alternative 

approaches. The study should include diverse persons, with a range of 

perspectives about the mission of intelligence and law enforcement 

agencies and also with expertise with respect to privacy and civil liberties. 

 

120 See International Principles on the Application of Human Rights to Communications Surveillance, 10 July 

2013, available at http://en.necessaryandproportionate.org/text. 

121 442 US 735 (1979). 
122 

F. Secrecy and Transparency 

Recommendation 7 

We recommend that legislation should be enacted requiring that 

detailed information about authorities such as those involving National 

Security Letters, section 215 business records, section 702, pen register 

and trap-and-trace, and the section 215 bulk telephony meta-data 

program should be made available on a regular basis to Congress and 

the American people to the greatest extent possible, consistent with the 

need to protect classified information. With respect to authorities and 

programs whose existence is unclassified, there should be a strong 

presumption of transparency to enable the American people and their 

elected representatives independently to assess the merits of the 

programs for themselves. 

Recommendation 8 

We recommend that: 

(1) legislation should be enacted providing that, in the use of 

National Security Letters, section 215 orders, pen register and 

trap-and-trace orders, 702 orders, and similar orders directing 

individuals, businesses, or other institutions to turn over 

information to the government, non-disclosure orders may be 

issued only upon a judicial finding that there are reasonable 

grounds to believe that disclosure would significantly threaten 

the national security, interfere with an ongoing investigation, 

endanger the life or physical safety of any person, impair 
123 

diplomatic relations, or put at risk some other similarly weighty 

government or foreign intelligence interest; 

(2) nondisclosure orders should remain in effect for no longer than 

180 days without judicial re-approval; and 

(3) nondisclosure orders should never be issued in a manner that 

prevents the recipient of the order from seeking legal counsel in 

order to challenge the order’s legality. 

Recommendation 9 

We recommend that legislation should be enacted providing that, 

even when nondisclosure orders are appropriate, recipients of National 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders issued in programs whose 

existence is unclassified may publicly disclose on a periodic basis 

general information about the number of such orders they have received, 

the number they have complied with, the general categories of 

information they have produced, and the number of users whose 

information they have produced in each category, unless the government 

makes a compelling demonstration that such disclosures would 

endanger the national security. 

Recommendation 10 

We recommend that, building on current law, the government 

should publicly disclose on a regular basis general data about National 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders in programs whose 
124 

existence is unclassified, unless the government makes a compelling 

demonstration that such disclosures would endanger the national 

security. 

Recommendation 11 

We recommend that the decision to keep secret from the American 

people programs of the magnitude of the section 215 bulk telephony 

meta-data program should be made only after careful deliberation at 

high levels of government and only with due consideration of and 

respect for the strong presumption of transparency that is central to 

democratic governance. A program of this magnitude should be kept 

secret from the American people only if (a) the program serves a 

compelling governmental interest and (b) the efficacy of the program 

would be substantially impaired if our enemies were to know of its 

existence. 

A free people can govern themselves only if they have access to the 

information that they need to make wise judgments about public policy. A 

government that unnecessarily shields its policies and decisions from 

public scrutiny therefore undermines the most central premise of a free and 

self-governing society. As James Madison observed, “A popular 

Government, without popular information, or the means of acquiring it, is 

but a Prologue to a Farce or a Tragedy; or, perhaps both.”122

There is no doubt that in the realm of national security, the nation 

needs to keep secrets. The question, though, is what information must be 

 

122 Letter from James Madison to W.T. Barry (Aug. 4, 1822) in The Writings of James Madison at 103 

(Gaillard Hunt, ed., G.P. Putnam’s Sons) 1910. 
125 

kept secret. The reasons why government officials want secrecy are many 

and varied. They range from the truly compelling to the patently 

illegitimate. Sometimes government officials want secrecy because they 

rightly fear that the disclosure of certain information might seriously 

undermine the nation’s security. Sometimes they want secrecy because 

they do not want to have to deal with public criticism of their decisions or 

because they do not want the public, Congress, or the courts to override 

their decisions, which they believe to be wise. Sometimes they want secrecy 

because disclosure will expose their own incompetence, noncompliance, or 

wrongdoing. Some of those reasons for secrecy are obviously more worthy 

of deference than others. 

Adding to the complexity, the contribution of any particular 

disclosure to informed public discourse may vary widely depending upon 

the nature of the information. The disclosure of some confidential 

information may be extremely valuable to public debate (for example, the 

revelation of unwise or even unlawful government programs). The 

disclosure of other confidential information, however, may be of little or no 

legitimate value to public debate (for example, publication of the identities 

of covert American agents). The most vexing problems arise when the 

public disclosure of secret information is both harmful to national security 

and valuable to informed self-governance. 

There is a compelling need today for a serious and comprehensive 

reexamination of the balance between secrecy and transparency. In 

considering this question, the Public Interest Declassification Board (PIDB) 
126 

recently observed: “A Democratic society is grounded in the informed 

participation of the citizenry, and their informed participation requires 

access to Government information. An open record of official decisions is 

essential to educate and inform the public and enable it to assess the 

policies of its elected leaders. If officials are to be accountable for their 

actions and decisions, secrecy must be kept to the minimum required to 

meet legitimate national security considerations. . . . Better access to 

Government records and internal history will help both policymakers and 

the American public meet their mutual responsibilities to address national 

security and foreign policy challenges consistent with democratic values.” 

The PIDB concluded that it is necessary for the United States to make the 

reforms necessary “to transform current classification and declassification 

guidance and practice.”123

Another dimension to the secrecy vs. transparency issue concerns the 

role of whistle-blowers. Although an individual government employee or 

contractor should not take it upon himself to decide on his own to “leak” 

classified information because he thinks it would be better for the nation 

for the information to be disclosed, it is also the case that a free and 

democratic nation needs safe, reliable, and fair-minded processes to enable 

such individuals to present their concerns to responsible and independent 

officials. After all, their concerns might be justified. It does not serve the 

nation for our government to prevent information that should be disclosed 

from being disclosed. Although such mechanisms exist, they can certainly 

 

123 Public Interest Declassification Board, Transforming the Security Classification System, 1-2 (2012), pp.1-2. 
127 

be strengthened and made more accessible.124 Appendix D sets forth 

existing mechanisms for whistle-blowing. 

The secrecy vs. transparency issue also has serious repercussions 

today for the freedom of the press. It is the responsibility of our free press 

to expose abuse, over-reaching, waste, undue influence, corruption, and 

bad judgment on the part of our elected officials. A robust and fearless 

freedom of the press is essential to a flourishing self-governing society. It 

will not do for the press to be fearful, intimidated, or cowed by 

government officials. If they are, it is “We the People” who will suffer. Part 

of the responsibility of our free press is to ferret out and expose 

information that government officials would prefer to keep secret when 

such secrecy is unwarranted. This point raises fundamental issues about 

press shield laws, spying on members of the press and their sources, 

investigating members of the press, and attempting to intimidate members 

of the press. 

At the same time, the potential danger of leaks is more serious than 

ever, especially in light of the fact that information can be spread instantly 

across the globe. The fact that classified information can now be stolen, 

either by insiders or outsiders, in massive quantities, creates 

 

124 On October 10, 2012, President Obama issued Presidential Policy Directive/PPD-19, which prohibits 

any retaliatory employment action against any government employee with access to classified 

information who reports any instance of “waste, fraud, and abuse,” including violations “of any law, 

rule, or regulation,” to “a supervisor in the employee’s direct chain of command up to and including the 

head of the employing agency, to the Inspector General of the employing agency or Intelligence 

Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence 

Community.” Id. Although this is an important step in the right direction, it does not go far enough. First, 

it covers only government employees and not government contractors. Second, it requires the would-be 

whistle-blower to report to a person in his “direct chain of command,” rather than to an independent 

authority. We discuss whistle-blowing in Chaper VI. 
128 

unprecedented dangers. Put simply, the stakes on both sides—national 

security and effective self-governance—are high. 

At the very least, we should always be prepared to question claims 

that secrecy is necessary. That conclusion needs to be demonstrated rather 

than merely assumed. When it is possible to promote transparency without 

appreciably sacrificing important competing interests, we should err on the 

side of transparency. 

Thus, in implementing NSLs, section 215 orders, pen register and 

trap-and-trace orders, section 702 orders, and similar orders in programs 

whose existence is unclassified, the government should, to the greatest 

extent possible, report publicly on the total number of requests made and 

the number of individuals whose records have been requested. These totals 

inform Congress and the public about the overall size and trends in a 

program, and are especially informative when there are major changes in 

the scale of a program. In addition, providers have shown a strong interest 

in providing periodic transparency reports about the number of requests to 

which they have responded. Reports from providers can be a useful 

supplement to reports from the government—the existence of multiple 

sources of information reduces the risk of inaccurate reporting by any one 

source. Reports from providers are also an important way for providers to 

assure customers and the general public that they are careful stewards of 

their users’ records. As discussed in Chapter VII, such transparency reports 

from providers should be permitted and encouraged by governments 

throughout the world, and the US Government should work with allies to 
129 

enable accurate reporting about government requests in other countries as 

well as in the United States. 

In some instances, over-reporting can also be a problem. This might 

occur when there are duplicative reports, which burden agencies with 

redundant requirements. To address this concern, the government should 

catalog the current reporting requirements on FISA, NSLs, and other 

intelligence-related statistics, and document how frequently these reports 

are made and to whom. As shown in Appendix C, multiple oversight 

mechanisms exist for reporting to Congress and within the Executive 

Branch. A catalog of existing reports would create a more informed basis 

for deciding what changes in reporting might be appropriate. Moreover, in 

some instances public reports can unintentionally harm the national 

security by inadvertently revealing critical information. For instance, 

detailed reports by small Internet service providers about government 

requests for information might inadvertently tip off terrorists or others 

who are properly under surveillance. To reduce this risk, reporting 

requirements should be less detailed in those situations in which reporting 

about a small number events might reveal critical information to those 

under surveillance.125

 

125 Similarly, in the context of the non-disclosure orders addressed in Recommendation 9, the government 

should be able to act without prior judicial authority in cases of emergency. 
130 

Chapter IV 

Reforming Foreign Intelligence Surveillance Directed at NonUnited States Persons 

A. Introduction 

To what extent should the United States accord non-United States 

persons the same privacy protections it recognizes for United States 

persons? At one level, it is easy to say that “all persons are created equal” 

and that every nation should accord all persons the same rights, privileges 

and immunities that it grants to its own citizens. But, of course, no nation 

follows such a policy. Nations see themselves as distinct communities with 

particular obligations to the members of their own community. On the 

other hand, there are certain fundamental rights and liberties that all 

nations should accord to all persons, such as the international prohibition 

on torture. 

In this chapter, we explore the non-United States person issue in the 

specific content of foreign intelligence surveillance. International law 

recognizes the right of privacy as fundamental,126 but the concrete meaning 

of that right must be defined. Certainly, a nation can choose to grant its 

own citizens a greater degree of privacy than international law requires. 

We focus specifically on foreign intelligence collection under section 

702 of FISA and Executive Order 12333. The central question we address is: 

What is the minimum degree of privacy protection the United States should 

 

126 The Universal Declaration of Human Rights, Art. 12 states, “No one shall be subjected to arbitrary 

interference with his privacy...” 
131 

grant to non-United States persons in the realm of foreign intelligence 

surveillance? We conclude that the United States should grant greater 

privacy protection to non-United States persons than we do today. 

B. Foreign Intelligence Surveillance and Section 702 

In general, the federal government is prohibited from intercepting the 

contents of private telephone calls and e-mails of any person, except in 

three circumstances. First, in the context of criminal investigations, Title III 

of the Electronic Communications Privacy Act authorizes the government 

to intercept such communications if a federal judge issues a warrant based 

on a finding that there is probable cause to believe that an individual is 

committing, has committed, or is about to commit a federal crime and that 

communications concerning that crime will be seized as a result of the 

proposed interception.127

Second, as enacted in 1978, FISA authorized the federal government 

to intercept electronic communications if a judge of the FISC issues a 

warrant based on a finding that the purpose of the surveillance is to obtain 

foreign intelligence information, the interception takes place inside the United 

States, and there is probable cause to believe that the target of the 

surveillance is an agent of a foreign power (which includes, among other 

things, individuals engaged in international terrorism, the international 

proliferation of weapons of mass destruction, and clandestine intelligence 

activities). 

 

127 See 18 U.S.C. § 2518(3). 
132 

Third, there is foreign intelligence surveillance that takes place outside 

the United States. At the time FISA was enacted, Congress expressly decided 

not to address the issue of electronic surveillance of persons located 

outside the United States, including American citizens, noting that the 

“standards and procedures for overseas surveillance may have to be 

different than those provided in this bill for electronic surveillance within 

the United States.”128 It was apparently assumed that intelligence collection 

activities outside the United States would be conducted under the 

Executive Branch’s inherent constitutional authority and the statutory 

authorizations granted to each Intelligence Community agency by 

Congress, and that it would be governed by presidential Executive Orders 

and by procedures approved by the Attorney General. To that end, in 1981 

President Ronald Reagan issued Executive Order 12333, discussed above, 

which (as amended) specifies the circumstances in which the nation’s 

intelligence agencies can engage in foreign intelligence surveillance outside 

the United States.129

Although Congress did not take up this issue in the immediate 

aftermath of the terrorist attacks of September 11, 2001, several 

developments brought the question to the fore. First, technological 

 

128 H. Rep. No. 95-1283 (I) at 50-51 (June 5, 1978). 

129 Executive Order 12333, which governs the use of electronic surveillance by the Intelligence 

Community outside the United States, provides that “timely, accurate, and insightful information about 

the activities, capabilities, plans, and intentions of foreign powers, organizations, persons, and their 

agents, is essential to the national security of the United States.” It declares that “special emphasis should 

be given to detecting and countering” espionage, terrorism, and the development, possession, 

proliferation, or use of weapons of mass destruction. The executive order directs that “such techniques as 

electronic surveillance” may not be used “unless they are in accordance with procedures . . . approved by 

the Attorney General” and that “such procedures shall protect constitutional and other legal rights and 

limit use of such information to lawful governmental purposes.” 
133 

advances between 1978 and the early 21st century complicated the 

implementation of the original FISA rules. The distinction FISA drew 

between electronic surveillance conducted inside the United States and 

electronic surveillance conducted outside the United States worked 

reasonably well in 1978, because then-existing methods of communication 

and collection made that distinction meaningful. But the development of a 

global Internet communications grid with linchpins located within the 

United States undermined the distinction. 

By the early twenty-first century, a large percentage of the world’s 

electronic communications passed through the United States, and foreign 

intelligence collection against persons located outside the United States 

was therefore increasingly conducted with the assistance of service 

providers inside the United States. Unless the legislation was amended, 

this new state of affairs meant that the government would have to go to the 

FISC to obtain orders authorizing electronic surveillance for foreign 

intelligence purposes even of individuals who were in fact outside the 

United States, a state of affairs Congress had not anticipated at the time it 

enacted FISA in 1978. 

Second, in late 2005 it came to light that, shortly after the attacks of 

September 11, President George W. Bush had secretly authorized NSA to 

conduct foreign intelligence surveillance of individuals who were inside the 

United States without complying with FISA. Specifically, the President 

authorized NSA to monitor electronic communications (e.g., telephone 

calls and e-mails) between people inside the United States and people 
134 

outside the United States whenever NSA had “a reasonable basis to 

conclude that one party to the communication” was affiliated with or 

working in support of al-Qa’ida. 

Because this secret program did not require the government either to 

obtain a warrant from the FISC or to demonstrate that it had probable 

cause that the target of the surveillance was an agent of a foreign power—

even when the target was inside the United States—it clearly exceeded the 

bounds of what Congress had authorized in FISA. The Bush administration 

maintained that this program was nonetheless lawful, invoking both 

Congress’ 2001 Authorization to Use Military Force and the President’s 

inherent constitutional authority as commander-in-chief. 

In light of these developments, Congress decided to revisit FISA. In 

2007, Congress amended FISA in the Protect America Act (PAA), which 

provided, among other things, that FISA was inapplicable to any electronic 

surveillance that was “directed at a person reasonably believed to be 

located outside the United States.”130 In effect, the PAA excluded from the 

protections of FISA warrantless monitoring of international 

communications if the target of the surveillance was outside the United 

States, even if the target was an American citizen. The PAA was sharply 

criticized on the ground that it gave the government too much authority to 

target the international communications of American citizens. 

The following year, Congress revised the law again in the FISA 

Amendments Act of 2008 (FAA). The FAA adopted different rules for 

 

130 The Protect America Act of 2007, Pub. L. 111-55 (Aug. 5, 2007) which amended 50 U.S.C. § 1803 et. seq., 

by adding §§ 1803 a-c. 
135 

international communications depending on whether the target of the 

surveillance was a “United States person” (a category that was defined to 

include both American citizens and non-citizens who are legal permanent 

residents of the United States)131 or a “non-United States person.”132 The FAA 

provides that if the government targets a United States person who is 

outside the United States, the surveillance must satisfy the traditional 

requirements of FISA. That is, the surveillance is permissible only if it is 

intended to acquire foreign intelligence information and the FISC issues a 

warrant based on a finding that there is probable cause to believe that the 

United States person is an agent of a foreign power, within the meaning of 

FISA. Thus, if the target of the surveillance is a United States person, the 

same FISA procedures apply—without regard to whether the target is 

inside or outside the United States. 

On the other hand, the FAA provided in section 702 that if the target 

of foreign intelligence surveillance is a non-United States person who is 

“reasonably believed to be located outside the United States,” the 

government need not have probable cause to believe that the target is an 

agent of a foreign power and need not obtain an individual warrant from 

the FISC, even if the interception takes place inside the United States. 

Rather, section 702 authorized the FISC to approve annual certifications 

submitted by the Attorney General and the Director of National 

Intelligence (DNI) that identify certain categories of foreign intelligence 

targets whose communications may be collected, subject to FISC-approved 

 

131 See 50 U.S.C. § 1881(c). 

132 See 50 U.S.C. § 1881(a).
136 

targeting and minimization procedures. The categories of targets specified 

by these certifications typically consist of, for example, international 

terrorists and individuals involved in the proliferation of weapons of mass 

destruction. 

Under section 702, the determination of which individuals to target 

pursuant to these FISC-approved certifications is made by NSA without 

any additional FISC approval. In implementing this authority, NSA 

identifies specific “identifiers” (for example, e-mail addresses or telephone 

numbers) that it reasonably believes are being used by non-United States 

persons located outside of the United States to communicate foreign 

intelligence information within the scope of the approved categories (e.g., 

international terrorism, nuclear proliferation, and hostile cyber activities). 

NSA then acquires the content of telephone calls, e-mails, text messages, 

photographs, and other Internet traffic using those identifiers from service 

providers in the United States.133 

Illustrative identifiers might be an e-mail account used by a 

suspected terrorist abroad or other means used by by high-level terrorist 

leaders in two separate countries to pass messages. The number of 

identifiers for which NSA collects information under section 702 has 

gradually increased over time. 

Section 702 requires that NSA’s certifications attest that a “significant 

purpose” of any acquisition is to obtain foreign intelligence information 

 

133 See 50 U.S.C. §1881. Service providers who are subject to these orders are entitled to compensation and 

are immune from suit for their assistance. They may petition the FISC to set aside or modify the directive 

if they think that it is unlawful. If a provider is uncooperative, the Attorney General may petition the 

FISC for an order to enforce the directive. 
137 

(i.e. directed at international terrorism, nuclear proliferation, or hostile 

cyber activities), that it does not intentionally target a United States person, 

that it does not intentionally target any person known at the time of 

acquisition to be in the United States, that it does not target any person 

outside the United States for the purpose of targeting a person inside the 

United States, and that it meets the requirements of the Fourth 

Amendment.134 The annual certification provided to the FISC must attest 

that the Attorney General and the Director of National Intelligence have 

adopted guidelines to ensure compliance with these and other 

requirements under section 702, including that the government does not 

intentionally use section 702 authority to target United States persons, 

inside or outside the United States.135 The FISC annually reviews the 

targeting and minimization procedures to ensure that they satisfy all 

statutory and constitutional requirements. 

Other significant restrictions govern the use of section 702: 

• If a section 702 acquisition inadvertently obtains a 

communication of or concerning a United States person, 

section 702’s minimization procedures require that any 

information about such a United States person must be 

destroyed unless there are compelling reasons to retain it, 

for example, if the information reveals a communications 

security vulnerability or an imminent threat of serious 

harm to life or property. 

 

134 See generally 50 U.S.C. 1881a. 

135 Id.
138 

• If a target reasonably believed to be a non-United States 

person located outside the United States either enters the 

United States or is discovered to be a United States 

person, acquisition must immediately be terminated. 

• Any information collected after a non-United States 

person target enters the United States must promptly be 

destroyed, unless it constitutes evidence of criminal 

conduct or has significant foreign intelligence value. 

• Any information collected prior to the discovery that a 

target believed to be a non-United States person is in fact 

a United States person must be promptly destroyed, 

unless it constitutes evidence of criminal conduct or has 

significant foreign intelligence value. 

• The dissemination of any information about a United 

States person collected during the course of a section 702 

acquisition is prohibited, unless it is necessary to 

understand foreign intelligence or assess its importance, 

is evidence of criminal conduct, or indicates an imminent 

threat of death or serious bodily injury. 

Section 702 imposes substantial reporting requirements on the 

government in order to enable both judicial and congressional oversight, in 

addition to the oversight conducted within the Executive Branch by the 

Department of Justice (DOJ), the Office of the Director of National 
139 

Intelligence (ODNI), and the Inspectors Generals of the various agencies 

that make up the Intelligence Community: 

• Approximately every 15 days, a team of attorneys from 

the National Security Division (NSD) of the DOJ and 

ODNI reviews the documentation underlying every new 

identifier tasked by NSA for collection. The team makes 

two judgments about each identifier: (1) Is the target a 

non-United States person reasonably believed to be 

located outside the United States? (2) Is the target within 

the categories of targets certified by the Attorney General 

and the DNI for collection under section 702? 

• Section 702 requires the Attorney General and the DNI to 

provide semiannual assessments of the implementation of 

section 702 both to the oversight committees in Congress 

and to the FISC. 

• The Inspector General of any intelligence agency that 

conducts an acquisition under section 702 must regularly 

review the agency’s use of section 702 and provide copies 

of that review to the Attorney General, the DNI, and the 

congressional oversight committees. 

• The head of any intelligence agency that conducts an 

acquisition under section 702 must perform an annual 

review of the agency’s implementation of section 702 and 

provide copies of that review to the FISC, the Attorney 
140 

General, the DNI, and the congressional oversight 

committees. 

• The Attorney General must make semiannual reports to 

the congressional intelligence and judiciary committees 

on the implementation of section 702. 

• The Attorney General must make semiannual reports to 

the congressional intelligence and judiciary committees 

that include summaries of all significant legal decisions 

made by the FISC and copies of all decisions, orders, or 

opinions of the FISC that involve a significant 

interpretation of any provision of FISA, including section 

702. 

• The FISC requires the intelligence agencies to 

immediately report to the court any compliance incidents 

and the government reports quarterly to the FISC about 

the status of any previously reported compliance issues. 

• An annual Inspector General assessment is provided to 

Congress reporting on compliance issues, the number of 

disseminations relating to United States persons, and the 

number of targets found to be located inside the United 

States. 

In 2012, Senator Diane Feinstein (D-CA), the Chair of the Senate 

Select Committee on Intelligence, reported that a review of the 

assessments, reports, and other information available to the Committee 
141 

“demonstrate that the government implements [section 702] in a 

responsible manner with relatively few incidents of non-compliance. 

Where such incidents have arisen, they have been the inadvertent result of 

human error or technical defect and have been promptly reported and 

remedied.” Indeed, since the enactment of section 702, the Committee “has 

not identified a single case in which a government official engaged in a 

willful effort to circumvent or violate the law.”136 

Although compliance issues under section 702 have been infrequent, 

they have been vexing when they arise. In one instance, the FISC held that, 

for technical reasons concerning the manner in which the collection 

occurred, the minimization procedures that applied to NSA’s upstream 

collection137 of electronic communications did not satisfy the requirements 

of either FISA or the Fourth Amendment. This was so because NSA’s use of 

upstream collection often involves the inadvertent acquisition of multicommunication transactions (MCTs),138 many of which do not fall within 

the parameters of section 702. Judge John Bates of the FISC noted that the 

“government’s revelations regarding the scope of NSA’s upstream 

collection implicate 50 U.S.C. § 1809(a), which makes it a crime (1) to 

‘engage[] in electronic surveillance under color of law except as authorized’ 

by statute. . . .”139 

 

136 S. Rep. 112-174 (June 7, 2012). 

137 The term “upstream collection” refers to NSA’s interception of Internet communications as they transit 

the facilities of an Internet backbone carrier. 

138 MCTs arise in situations in which many communications are bundled together within a single Internet 

transmission and when the lawful interception of one communication in the bundle results in the 

interception of them all. 139 In Re DNI/AG 702(g), Docket Number 702(i)-11-01 (FISC October 3, 2011) (hereinafter cited as FISC Oct. 

3, 2011 opinion). 
142 

Judge Bates observed that “NSA acquires more than two hundred 

fifty million Internet communications each year pursuant to Section 702” 

and that the vast majority of those communications are “not at issue 

here.”140 But, he added, the upstream collection represents “approximately 

9 percent of the total Internet communications being acquired by NSA 

under Section 702,” and those acquisitions inadvertently sweep in “tens of 

thousands of wholly domestic communications” because they happen to be 

contained within an MCT that includes a targeted selector.141 

In such circumstances, Judge Bates noted that the “fact that NSA’s 

technical measures cannot prevent NSA from acquiring transactions 

containing wholly domestic communications . . . does not render NSA’s 

acquisition of those transactions ‘unintentional.’”142 Judge Bates concluded 

that “NSA’s minimization procedures, as applied to MCTs,” did not meet 

the requirements of either FISA or the Fourth Amendment. He therefore 

refused to approve NSA’s continuing acquisition of MCTs.143 Thereafter, 

the government substantially revised its procedures for handling MCTs, 

and in November 2011 Judge Bates approved the future acquisition of such 

communications subject to the new minimization standards.144 In addition, 

NSA took the additional step of deleting all previously acquired upstream 

communications. 

 

140 Id.

141 Id. 

142 Id. 

143 Id. 

144 In re DNI/AG 702(g), Docket Number 702(i)-11-01 (FISC November 30, 2011) (Redacted version). 
143 

According to NSA, section 702 “is the most significant tool in NSA 

collection arsenal for the detection, identification, and disruption of 

terrorist threats to the US and around the world.” To cite just one example, 

collection under section 702 “was critical to the discovery and disruption” 

of a planned bomb attack in 2009 against the New York City subway 

system” and led to the arrest and conviction of Najibullah Zazi and several 

of his co-conspirators.145 

According to the Department of Justice and the Office of the Director 

of National Intelligence in a 2012 report to Congress: 

Section 702 enables the Government to collect information 

effectively and efficiently about foreign targets overseas and in 

a manner that protects the privacy and civil liberties of 

Americans. Through rigorous oversight, the Government is 

able to evaluate whether changes are needed to the procedures 

or guidelines, and what other steps may be appropriate to 

safeguard the privacy of personal information. In addition, the 

Department of Justice provides the joint assessments and other 

reports to the FISC. The FISC has been actively involved in the 

review of section 702 collection. Together, all of these 

mechanisms ensure thorough and continuous oversight of 

section 702 activities. . . . 

Section 702 is vital to keeping the nation safe. It provides 

information about the plans and identities of terrorists, 

 

145 National Security Agency, The National Security Agency: Missions, Authorities, Oveersight and Partnerships

(August 9, 2013). 
144 

allowing us to glimpse inside terrorist organizations and obtain 

information about how those groups function and receive 

support. In addition, it lets us collect information about the 

intentions and capabilities of weapons proliferators and other 

foreign adversaries who threaten the United States.146 

In reauthorizing section 702 for an additional five years in 2012, the 

Senate Select Committee on Intelligence concluded: 

[T]he authorities provided [under section 702] have 

greatly increased the government’s ability to collect 

information and act quickly against important foreign 

intelligence targets. The Committee has also found that [section 

702] has been implemented with attention to protecting the 

privacy and civil liberties of US persons, and has been the 

subject of extensive oversight by the Executive branch, the 

FISC, as well as the Congress. . . . [The] failure to reauthorize 

[section 702] would “result in a loss of significant intelligence 

and impede the ability of the Intelligence Community to 

respond quickly to new threats and intelligence 

opportunities.”147

Our own review is not inconsistent with this assessment. During the 

course of our analysis, NSA shared with the Review Group the details of 54 

 

146 Background Paper on Title VII of FISA Prepared by the Department of Justice and the Office of the 

Director of National Intelligence (ODNI), Appendix to Senate Select Committee on Intelligence, Report on 

FAA Sunsets Extension Act of 2012, 112th Congress, Cong., 2d Session (June 7, 2012). 

147 Senate Select Committee on Intelligence, Report on FAA Sunsets Extension Act of 2012, 112th Congress, 2d 

Session (June 7, 2012). 
145 

counterterrorism investigations since 2007 that resulted in the prevention 

of terrorist attacks in diverse nations and the United States. In all but one of 

these cases, information obtained under section 702 contributed in some 

degree to the success of the investigation. Although it is difficult to assess 

precisely how many of these investigations would have turned out 

differently without the information learned through section 702, we are 

persuaded that section 702 does in fact play an important role in the 

nation’s effort to prevent terrorist attacks across the globe. 

* * * * * * * * * 

Although section 702 has clearly served an important function in 

helping the United States to uncover and prevent terrorist attacks both in 

the United States and around the world (and thus helps protect our allies), 

the question remains whether it achieves that goal in a way that 

unnecessarily sacrifices individual privacy and damages foreign relations. 

Because the effect of section 702 on United States persons is different from 

its effect on non-United States persons, it is necessary to examine this 

question separately for each of these categories of persons. 

C. Privacy Protections for United States Persons Whose 

Communications are Intercepted Under Section 702 

Recommendation 12 

We recommend that, if the government legally intercepts a 

communication under section 702, or under any other authority that 

justifies the interception of a communication on the ground that it is 

directed at a non-United States person who is located outside the United 
146 

States, and if the communication either includes a United States person 

as a participant or reveals information about a United States person: 

(1) any information about that United States person should be 

purged upon detection unless it either has foreign intelligence 

value or is necessary to prevent serious harm to others; 

(2) any information about the United States person may not be used 

in evidence in any proceeding against that United States person; 

(3) the government may not search the contents of communications 

acquired under section 702, or under any other authority covered 

by this recommendation, in an effort to identify communications 

of particular United States persons, except (a) when the 

information is necessary to prevent a threat of death or serious 

bodily harm, or (b) when the government obtains a warrant based 

on probable cause to believe that the United States person is 

planning or is engaged in acts of international terrorism.

Section 702 affords United States persons the same protection against 

foreign intelligence surveillance when they are outside the United States 

that FISA affords them when they are inside the United States. That is, a 

United States person may not lawfully be targeted for foreign intelligence 

surveillance unless the FISC issues a warrant based on a finding that there 

is probable cause to believe that the targeted United States person is an 

agent of a foreign power (as defined in FISA). 

Section 702 has a potentially troubling impact on the privacy of 

communications of United States persons because of the risk of inadvertent 
147 

interception. The government cannot lawfully target the communications of 

a United States person, whether she is inside or outside the United States, 

without satisfying the probable cause requirements of both FISA and the 

Fourth Amendment. But in determining whether the target of any 

particular interception is a non-United States person who is located outside 

the United States, section 702 requires only that the government reasonably 

believe the target to be such a person. Because United States persons are 

appreciably more likely to have their constitutionally protected 

communications inadvertently intercepted under the reasonable belief 

standard than under the probable cause standard, the reasonable belief 

standard provides less protection to US persons than ordinarily would be 

the case. 

Exacerbating that concern is the risk of incidental interception. This 

occurs when the government acquires the communications of a legally 

targeted individual under section 702 who is communicating with United 

States persons who cannot themselves be lawfully targeted for surveillance. 

The issue of incidental acquisition can arise whenever the government 

engages in electronic surveillance. 

For example, if the government has probable cause to wiretap an 

individual’s phone because he is suspected of dealing drugs, it may 

incidentally intercept the suspect’s conversations with completely innocent 

persons who happen to speak with the suspect during the duration of the 

wiretap. In such circumstances, the standard practice in criminal law 

enforcement is for the government to purge from its records any reference 
148 

to the innocent person unless it reveals evidence of criminal conduct by the 

innocent person or provides relevant information about the guilt or 

innocence of the suspect.148 

Following a similar approach, when incidental acquisition occurs in 

the course of section 702 surveillance, existing minimization procedures 

require that any intercepted communication with a United States person, 

and any information obtained about a United States person in the course of 

a section 702 acquisition, must be destroyed—unless it has foreign 

intelligence value, indicates an imminent threat of death or serious bodily 

harm, or is evidence of a crime.149 

In our view, this approach does not adequately protect the legitimate 

privacy interests of United States persons when their communications are 

incidentally acquired under section 702. This is so for three reasons. First, 

when a United States person (whether inside or outside the United States) 

communicates with a legally targeted non-United States person who is 

outside the United States, there is a significantly greater risk that his 

communication will be acquired under section 702 than (a) if they 

communicated with one another when they were both inside the United 

States or (b) if FISA treated non-United States persons outside the United 

States the same way it treats United States persons outside the United 

States. Thus, when an American in Chicago e-mails a foreign friend abroad, 

there is a significantly greater chance that his e-mail will be acquired under 

702 than if he e-mails an American in Paris or a foreigner in New York. 

 

148 28 C.F.R. ch. I, Part 23. 

149 NSA’s Section 702 Minimization Procedures. 
149 

This is so because section 702 allows the government to target the foreign 

friend abroad under a lower standard than if the target was the American 

in Paris or the foreigner in New York. For this reason, incidental 

interception is significantly more likely to occur when the interception 

takes place under section 702 than in other circumstances. 

Second, it is often difficult to determine whether the e-mail address, 

Internet communication, or telephone number of the non-targeted 

participant in a legally acquired communication belongs to a United States 

person, because that information often is not apparent on the face of the 

communication. In such circumstances, there is a significant risk that 

communications involving United States persons will not be purged and, 

instead, will be retained in a government database. 

Third, the very concept of information of “foreign intelligence value” 

has a degree of vagueness and can easily lead to the preservation of private 

information about even known United States persons whose 

communications are incidentally intercepted in the course of a legal section 

702 interception. 

For all of these reasons, there is a risk that, after the government 

incidentally collects communications of or about United States persons in 

the course of legal section 702 acquisitions, it will later be able to search 

through its database of communications in a way that invades the 

legitimate privacy interests of United States persons. Because the 

underlying rationale of section 702 is that United States persons are entitled 

to the full protection of their privacy even when they communicate with 
150 

non-United States persons who are outside the United States, they should 

not lose that protection merely because the government has legally 

targeted non-United States persons who are located outside the United 

States under a standard that could not legally be employed to target a United 

States person who participates in that communication. The privacy interests of 

United States persons in such circumstances should be accorded 

substantial protection, particularly because section 702 is not designed or 

intended to acquire the communications of United States persons. 

Our recommended approach would leave the government free to use 

section 702 to obtain the type of information it is designed and intended to 

acquire—information about non-United States persons who are the legal 

targets of these investigations, while at the same time (a) more fully 

preserving the privacy of United States persons who are not the targets of 

these interceptions and (b) reducing the incentive the government might 

otherwise have to use section 702 in an effort to gather evidence against 

United States persons in a way that would circumvent the underlying 

values of both FISA and the Fourth Amendment.150

 

150 Recommendation 12(2) is designed to address this latter concern. If the government cannot use the 

evidence in any legal proceeding against the US person, it is less likely to use section 702 in an effort to 

obtain such information. On the other hand, we do not recommend prohibiting the use of the “fruits” of 

such interceptions. We draw the line as we do because, unlike most “fruit of the poisonous tree” 

situations, the interception in this situation is not itself unlawful unless it was actually motivated by a 

desire to obtain information about the US person. 
151 

D. Privacy Protections for Non-United States Persons 

Recommendation 13 

We recommend that, in implementing section 702, and any other 

authority that authorizes the surveillance of non-United States persons 

who are outside the United States, in addition to the safeguards and 

oversight mechanisms already in place, the US Government should 

reaffirm that such surveillance: 

(1) must be authorized by duly enacted laws or properly authorized 

executive orders; 

(2) must be directed exclusively at the national security of the 

United States or our allies; 

(3) must not be directed at illicit or illegitimate ends, such as the 

theft of trade secrets or obtaining commercial gain for domestic 

industries; and 

(4) must not disseminate information about non-United States 

persons if the information is not relevant to protecting the 

national security of the United States or our allies. 

In addition, the US Government should make clear that such 

surveillance: 

(1) must not target any non-United States person located outside of 

the United States based solely on that person’s political views 

or religious convictions; and 
152 

 (2) must be subject to careful oversight and to the highest degree of 

transparency consistent with protecting the national security of 

the United States and our allies. 

Because section 702 is directed specifically at non-United States 

persons, it raises the question whether it sufficiently respects the legitimate 

privacy interests of such persons. At the outset, it is important to note that, 

when non-citizens are inside the United States, our law accords them the 

full protection of the Fourth Amendment. They have the same right to be 

free of unreasonable searches and seizures as American citizens. Moreover, 

non-citizens who have made a commitment to our community by 

establishing legal residence in the United States are designated “United 

State persons” and, as such, are treated the same way as American citizens 

in terms of government surveillance—even when they are outside the 

United States. These are important protections for individuals who are not 

citizens of the United States. 

What, though, of non-United States persons who are outside the United 

States? We begin by emphasizing that, contrary to some representations, 

section 702 does not authorize NSA to acquire the content of the 

communications of masses of ordinary people. To the contrary, section 702 

authorizes NSA to intercept communications of non-United States persons 

who are outside the United States only if it reasonably believes that a 

particular “identifier” (for example, an e-mail address or a telephone 

number) is being used to communicate foreign intelligence information 

related to such matters as international terrorism, nuclear proliferation, or 
153 

hostile cyber activities. NSA’s determinations are subjected to constant, 

ongoing, and independent review by all three branches of the federal 

government to ensure that NSA targets only identifiers that meet these 

criteria. 

That still leaves the question, however, whether section 702 

adequately respects the legitimate privacy interests of non-United States 

persons when they are in their home countries or otherwise outside the 

United States. If section 702 were designed to intercept the communications 

of United States persons, it would clearly violate the Fourth Amendment.151

Does it also violate the Fourth Amendment insofar as it is directed at nonUnited States persons who are located outside the United States? The 

Supreme Court has definitively answered this question in the negative.152 

Wholly apart from the Fourth Amendment, how should the United 

States treat non-United States persons when they are outside the United 

States? To understand the legal distinction between United States persons 

and non-United States persons, it is important to recognize that the special 

protections that FISA affords United States persons grew directly out of a 

distinct and troubling era in American history. In that era, the United States 

 

151 Although the Supreme Court has never directly addressed this question, “every court of appeals to 

have considered the question” has held “that the Fourth Amendment applies to searches conducted by 

the United States Government against United States citizens abroad.” United States v. Verdugo-Urquidez, 

494 US 259, 283 n.7 (1990) (Brennan, J., dissenting). See In re Terrorist Bombings of US. Embassies in East 

Africa, 552 F.3d 157 (2010); United States v. Bin Laden, 126 F. Supp. 2d 264, 270-271 (S.D.N.Y. 2000), aff’d, 

552 F.3d 157 (2d Cir. 2008); David S. Kris & J. Douglas Wilson, I, National Security Investigations and 

Prosecutions 2d at 596-597 (West 2012). 

152 See United States v. Verdugo-Urquidez, 494 US. 259, 265-266 (1990). Noting that the Fourth Amendment 

protects the right of “the people,” the Court held that this “refers to a class of persons who are part of a 

national community or who have otherwise developed sufficient connection with this country to be 

considered part of that community.” 
154 

government improperly and sometimes unlawfully targeted American 

citizens for surveillance in a pervasive and dangerous effort to manipulate 

domestic political activity in a manner that threatened to undermine the 

core processes of American democracy. As we have seen, that concern was 

the driving force behind the enactment of FISA. 

Against that background, FISA’s especially strict limitations on 

government surveillance of United States persons reflects not only a 

respect for individual privacy, but also—and fundamentally—a deep 

concern about potential government abuse within our own political system. 

The special protections for United States persons must therefore be 

understood as a crucial safeguard of democratic accountability and 

effective self-governance within the American political system. In light of 

that history and those concerns, there is good reason for every nation to 

enact special restrictions on government surveillance of those persons who 

participate directly in its own system of self-governance. 

As an aside, we note that the very existence of these protections in 

the United States can help promote and preserve democratic accountability 

across the globe. In light of the global influence of the United States, any 

threat to effective democracy in the United States could have negative and 

far-reaching consequences in other nations as well. By helping to maintain 

an effective system of checks and balances within the United States, the 

special protections that FISA affords United States persons can therefore 

contribute to sustaining democratic ideals abroad. 
155 

That brings us back, however, to the question of how the United 

States should treat non-United States persons who are not themselves 

either a part of our community or physically located in the United States. 

As a general rule, nations quite understandably treat their own citizens 

differently than they treat the citizens of other nations. On the other hand, 

there are sound, indeed, compelling reasons to treat the citizens of other 

nations with dignity and respect. As President Franklin Delano Roosevelt 

observed, the United States should be a “good neighbor.” Sometimes this is 

simply a matter of national self-interest. If the United States wants other 

nations to treat our citizens well, we must treat their citizens well. But 

there are other reasons for being a “good neighbor.” 

If we are too aggressive in our surveillance policies under section 702, 

we might trigger serious economic repercussions for American businesses, 

which might lose their share of the world’s communications market 

because of a growing distrust of their capacity to guarantee the privacy of 

their international users. Recent disclosures have generated considerable 

concern along these lines. 

Similarly, unrestrained American surveillance of non-United States 

persons might alienate other nations, fracture the unity of the Internet, and 

undermine the free flow of information across national boundaries. This, 

too, is a serious concern that cuts in favor of restraint. 

Perhaps most important, however, is the simple and fundamental 

issue of respect for personal privacy and human dignity – wherever people 

may reside. The right of privacy has been recognized as a basic human 
156 

right that all nations should respect. Both Article 12 of the Universal 

Declaration of Human Rights and Article 17 of the International Covenant 

on Civil and Political Rights proclaim that “No one shall be subjected to 

arbitrary or unlawful interference with his privacy. . . .” Although that 

declaration provides little guidance about what is meant by “arbitrary or 

unlawful interference,” the aspiration is clear. The United States should be 

a leader in championing the protection by all nations of fundamental 

human rights, including the right of privacy, which is central to human 

dignity. 

At this moment in history, one of the gravest dangers to our national 

security is international terrorism. Faced with that continuing and grave 

threat, the United States must find effective ways to identify would-be 

terrorists who are not located in the United States, who move freely across 

national borders, and who do everything in their power to mask their 

identities, intentions, and plans. In such circumstances, the challenge of 

striking a sound balance between protecting the safety and security of our 

own citizens and respecting the legitimate interests of the citizens of other 

nations is especially daunting. Our recommendations have been designed 

to achieve that balance. 

With our recommendations in place, there would be three primary 

differences between the standards governing the acquisition of 

communications of United States persons and non-United States persons 

under section 702 when they are outside the United States. First, United 

States persons can be targeted only upon a showing of probable cause, 
157 

whereas non-United States persons can be targeted upon a showing of 

reasonable belief. Second, United States persons can be targeted only if 

there is a judicial warrant from the FISC, whereas non-United States 

persons can be targeted without such a warrant, but with careful after-thefact review and oversight. Third, the minimization requirements for 

communications of United States persons would not extend fully to nonUnited States persons located outside the United States, but importantly, 

information collected about such persons would not be disseminated 

unless it is relevant to the national security of the United States or our 

allies. 

In our judgment, these differences are warranted by the special

obligation the United States Government owes to “the people” of the 

United States, while at the same time more than upholding our 

international obligation to ensure that no person “shall be subjected to 

arbitrary or unlawful interference with his privacy.” We encourage all 

nations to abide by these same limitations.153

Recommendation 14 

We recommend that, in the absence of a specific and compelling 

showing, the US Government should follow the model of the 

Department of Homeland Security, and apply the Privacy Act of 1974 in 

the same way to both US persons and non-US persons. 

 

153 It is important to note that although the government should not target a non-US person outside the 

United States for surveillance solely because of his political or religious activity or expression, it may 

target such an individual for surveillance if it has reason to believe that he poses a threat to US national 

security. 
158 

The Privacy Act of 1974154 provides what are known as “privacy fair 

information practices” for systems of records held by federal agencies. 

These practices, designed to safeguard personal privacy, include a set of 

legal requirements meant to ensure both the accuracy and the security of 

personally identifiable information in a system of records. Perhaps most 

important, individuals have the right to have access to those records and to 

make corrections, if needed. 

Since its enactment, the Act has applied only to United States 

persons. In 2009, the Department of Homeland Security (DHS) updated its 

2007 “Privacy Policy Guidance Memorandum.”155 This memorandum 

governs privacy protections for “mixed systems” of records—systems that 

collect or use information in an identifiable form and that contain 

information about both United States and non-United States persons.156

Today, DHS policy applies the Privacy Act in the same way to both 

US persons and non-US persons. As stated in the Memorandum, “As a 

matter of law the Privacy Act . . . does not cover visitors or aliens. As a 

matter of DHS policy, any personally identifiable information (PII) that is 

collected, used, maintained, and/or disseminated in connection with a 

mixed system by DHS shall be treated as a System of Records subject to the 

Privacy Act regardless of whether the information pertains to a US citizen, 

legal permanent resident, visitor, or alien.”157 

 

154 5 U.S.C. § 552(a). 

155 Department of Homeland Security: Privacy Policy Guidance Memorandum No. 2007-1 (January 7, 

2007) (amended on January 19, 2007). 156 Id. 

157 Id.
159 

The consequence of this policy is that DHS now handles non-US 

person PII held in mixed systems in accordance with the fair information 

practices set forth in the Privacy Act. Non-US persons have the right of 

access to their PII and the right to amend their records, absent an 

exemption under the Privacy Act. Because of statutory limitations, the 

policy does not extend or create a right of judicial review for non-US 

persons. 

Intelligence agencies today are covered by the Privacy Act, with 

exemptions to accommodate the need to protect matters that are properly 

classified or law-enforcement sensitive/investigatory in nature. For 

instance, NSA has filed twenty-six systems of records notices advising the 

public about data collections, including from applicants seeking 

employment, contractors doing business with the agency, and in order to 

conduct background investigations. 

NSA also completes privacy impact assessments under the EGovernment Act of 2002158 for its non-National Security Systems that 

collect, maintain, use, or disseminate PII about members of the public. CIA 

provides protections under the Privacy Act in contexts including collection 

directly from the individual; records describing individuals’ exercise of 

First Amendment rights; and the Act’s general prohibition on disclosure 

absent express written consent of the individual. The FBI applies the 

Privacy Act in the same manner for national security investigations as it 

does for other records covered by the Act. 

 

158 44 U.S.C. § 101.
160 

Unless the agencies provide specific and persuasive reasons not to do 

so, we recommend that the DHS policy should be extended to the mixed 

systems held in intelligence and other federal agencies. DHS policy has 

existed for several years for major record systems of records, including 

passenger name records and immigration records, and implementation 

experience from DHS can guide similar privacy protections for PII held in 

intelligence and other federal agencies. 

Appropriate exception authority appears to exist under the Act, 

including for National Security Systems and law enforcement investigatory 

purposes. The previous lack of Privacy Act protections has been a recurring 

complaint from European and other allies. This reform is manageable 

based on the DHS experience. It will both affirm the legitimate privacy 

rights of citizens of other nations and strengthen our relations with allies. 

Recommendation 15 

We recommend that the National Security Agency should have a 

limited statutory emergency authority to continue to track known targets 

of counterterrorism surveillance when they first enter the United States, 

until the Foreign Intelligence Surveillance Court has time to issue an 

order authorizing continuing surveillance inside the United States. 

Under current law, a problem arises under current law when known 

targets of counterterrorism surveillance enter the United States. 

Surveillance of a target has been legally authorized under the standards 

that apply overseas, under Section 702 or Executive Order 12333. 

Suddenly, the target is found to be in the United States, where surveillance 
161 

is permitted only under stricter legal standards. Under current law, NSA 

must cease collecting information as soon as it determines that the 

individual is within the United States. The surveillance can begin again 

only once there is new authorization under FISA. The irony of this outcome 

is that surveillance must cease at precisely the moment when the target has 

entered the United States and thus is in position to take hostile action. 

Colloquially, there can be a costly fumble in the hand-off from overseas to 

domestic surveillance. 

To address this gap in coverage, legislation has been proposed that 

would amend 50 U.S.C. § 1805 to give the Director of NSA emergency 

authority to acquire foreign intelligence information in such circumstances 

for up to 72 hours. We believe that some such authority is appropriate. A 

similar gap occurs where the target of surveillance overseas was originally 

thought to be a non-US person and then is found actually to be a US 

person. At the moment the target is being investigated for counterterrorism 

purposes, the authorities that permitted the surveillance no longer apply. 

The gap in coverage arises due to the different legal standards that 

apply at home and abroad. Surveillance under Section 702 is permitted if 

there is a reasonable belief that the person is not a US person and is located 

outside of the US, and if the purpose is to acquire foreign intelligence 

information subject to an existing certification. Surveillance under 

Executive Order 12333 is done so long as it is related to foreign intelligence. 

By contrast, a traditional FISA order for surveillance within the US requires 

probable cause that the person is an agent of a foreign power. In order to 
162 

target a US person who is outside of the US under FISA section 704, the 

government must show facts for reasonably believing that the person is 

outside of the US and is an agent of a foreign power. It can take time and 

effort to upgrade the factual findings from what enabled the surveillance 

within NSA under Section 702 or Executive Order 12333 to the findings 

that the Department of Justice needs to meet under a traditional FISA order 

or one under section 704. 

The precise scope of this hand-off authority deserves careful thought. 

The proposed legislation would allow seventy-two hours for surveillance 

on order of the NSA Director, followed by additional days of emergency 

authority by authorization of the Attorney General. There has been 

discussion of whether to limit the scope to situations where there is an 

imminent threat of death or serious bodily harm, or to go somewhat 

broader and allow the hand-off authority for any counterterrorism 

investigation. Additional facts and public discussion would be helpful to 

assessing such questions. 

However these questions of scope are resolved, it can be difficult in 

our era of mobile phones and e-mail addresses to determine when a 

communication is made within the United States. Where the 

communication unexpectedly is within our borders, or someone thought to 

be a non-US person is found to be a US person, there should be a capacity 

to respond to an emergency situation. 
163 

Chapter V 

Determining What Intelligence Should Be Collected and How 

The United States led the defense of the Free World in the Cold War. 

After having been targeted by terrorist groups, it led the global 

community’s efforts to combat violent extremism. Over time, the United 

States has developed a large Intelligence Community with unparalleled 

collection capabilities. The Intelligence Community collects information 

essential not only to our national security but also to that of many allied 

and friendly nations. The unsurpassed prowess of US technical intelligence 

collection is a major component of the maintenance of peace and security of 

the United States and many other nations. 

Intelligence collection is designed to inform policymakers, 

warfighters, and law enforcement officers who are responsible for making 

decisions and taking actions to protect the United States and its allies. 

Intelligence collection is not an end in itself. Intelligence collection should 

not occur because it is possible, but only because it is necessary. 

Intelligence, particularly signals intelligence, is as necessary now as 

ever to combat violent extremism, prevent the proliferation of nuclear 

weapons, combat international criminal groups, prevent atrocities, and 

enforce UN sanctions and other international regimes. With the passage of 

a dozen years since the attacks of September 11, 2001, the threat from alQa’ida and similar groups has changed, but it remains significant. For 
164 

example, recent years have seen the spread of al-Qa’ida-related groups to 

large swaths of Africa and the Middle East. We have also witnessed a rise 

in “Lone Wolf” terrorism, including in the United States. There is a 

continuing need for appropriate intelligence collection, data analysis, and 

information-sharing with appropriate personnel. So, too, there is a need for 

appropriate controls and oversight on intelligence collection to ensure that 

we act in ways that are both consistent with our values and reflective of 

our security requirements. 

To ascertain those requirements, the US Government has created a 

process known as the National Intelligence Priorities Framework (NIPF). 

While this process to produce intelligence priorities is the most robust ever 

used by the Intelligence Community, we believe that the NIPF system can 

and should be strengthened to ensure that what we seek to collect is truly 

needed and that our methods of collection are consistent with our values 

and policies. 

A. Priorities and Appropriateness 

To ascertain what intelligence is necessary to collect, policy officials 

and intelligence officers interact to establish intelligence needs or 

requirements and then priorities within those requirements. This process 

has been formalized into the NIPF. 

The NIPF divides all intelligence collection needs identified by 

policymakers into five categories or tiers in increasing degrees of 

importance. Tiers One and Two reflect the priorities of the nation, as 

articulated by the President, following priority identification and review by 
165 

sub-Cabinet-level officials in the National Security Council (NSC) Deputies 

Committee and then by Cabinet-level officials in the NSC Principals 

Committee. Tiers Three, Four, and Five reflect information needed by other 

government agencies and programs to carry out their legal mandates. The 

review process for Tiers Three through Five is coordinated by the Director 

of National Intelligence and involves policy officials at levels below the 

Principals and Deputies. 

The NIPF is reviewed, approved, and issued annually. Once an 

intelligence priority is approved, it is converted into a specific collection 

plan. Coordination of the collection is conducted by the Office of the 

Director of National Intelligence. 

Many intelligence priorities result in collection on a global basis. For 

example, an intelligence priority to monitor al-Qa’ida threats may mean 

collecting information not only in Afghanistan and Pakistan, where alQa’ida is headquartered, but also in scores of nations to which al-Qa’ida 

and its supporters have moved or emerged and which they might threaten. 

Enforcement of UN and other sanctions, stopping the proliferation of 

materials needed for nuclear weapons, halting the trafficking in persons, 

combating illicit drugs and criminal cartels, reducing the risk of mass 

atrocities, detecting the systematic violation of ethnic minority rights, and 

the detection of war crimes are all examples of intelligence priorities that 

require the collection of information in many nations. Often other 

governments will not have the ability to collect information on these 

requirements within their borders. Sometimes, they will intentionally seek 
166 

to deny the international community information about these concerns. 

The United States regularly shares information about these issues with 

allied and cooperating governments, and with international organizations. 

The United States is hardly alone in collecting such intelligence. Most 

nations collect intelligence, often limited only by their ability and 

resources. Indeed, the United States is an intelligence collection target of 

many nations, including friendly and even allied countries. The President’s 

own communications are a collection target for many nations, friendly and 

otherwise. 

One thing that makes United States intelligence collection unique is 

the degree of oversight and control by high-level officials, elected 

legislative members, and the judiciary (see Appendix C). No other 

intelligence services in the world are subjected to the degree of policy, 

legislative, and judicial review now applied to the US Intelligence 

Community. In our view, however, that oversight can be improved. The 

current NIPF process does not provide sufficient high-level oversight of a) 

lower-tier priorities; b) the specific means used to collect information on a 

priority; c) the locations where collection on a priority may occur; and d) 

developments that occur between annual reviews. 

This NIPF process should be strengthened to assure that sensitive 

collection is undertaken only after consideration of all national interests 

and with the participation of those officials who have responsibility for 

those interests. The following should be added to the process: (1) seniorlevel “interagency” policy oversight of all sensitive requirements, rather 
167 

than only the requirements in Tier One and Tier Two; (2) participation in 

the process by all the departments and agencies with relevant concerns, 

including economic ones; and (3) senior-level knowledge of and approval 

of specific targets of collection whenever the target or collection means is a 

sensitive one. We discuss below what constitutes a “sensitive” collection 

activity. 

The rationale behind these recommendations is simple. Senior 

policymakers should determine the activities of intelligence agencies; 

senior policymakers are the only participants with the breadth of 

experience to make such decisions; and any senior policymaker with 

relevant expertise and perspective should participate in policy formulation 

on sensitive collection. 

B. Monitoring Sensitive Collection 

Recommendation 16 

We recommend that the President should create a new process 

requiring high-level approval of all sensitive intelligence requirements 

and the methods the Intelligence Community will use to meet them. This 

process should, among other things, identify both the uses and limits of 

surveillance on foreign leaders and in foreign nations. A small staff of 

policy and intelligence professionals should review intelligence 

collection for sensitive activities on an ongoing basis throughout the year 

and advise the National Security Council Deputies and Principals when 

they believe that an unscheduled review by them may be warranted. 
168 

Recommendation 17 

We recommend that: 

(1) senior policymakers should review not only the requirements in 

Tier One and Tier Two of the National Intelligence Priorities 

Framework, but also any other requirements that they define as 

sensitive; 

(2) senior policymakers should review the methods and targets of 

collection on requirements in any Tier that they deem sensitive; 

and 

(3) senior policymakers from the federal agencies with 

responsibility for US economic interests should participate in 

the review process because disclosures of classified information 

can have detrimental effects on US economic interests. 

Recommendation 18 

We recommend that the Director of National Intelligence should 

establish a mechanism to monitor the collection and dissemination 

activities of the Intelligence Community to ensure they are consistent 

with the determinations of senior policymakers. To this end, the Director 

of National Intelligence should prepare an annual report on this issue to 

the National Security Advisor, to be shared with the Congressional 

intelligence committees. 

We believe that the definition of what is “sensitive,” and therefore 

should be reviewed in this strengthened NIPF, will vary with time. Among 

the factors that might make something sufficiently “sensitive” to require 
169 

senior interagency-level review are 1) the means that would be employed 

to collect information, 2) the specific people subject to collection, 3) the 

nation where the collection would occur, 4) international events such as a 

head-of-state meeting or negotiations, or 5) a combination of these factors. 

Intelligence collection managers may not always be aware that what 

they are doing or planning might fall into a category that makes it sensitive 

in the eyes of policymakers. Senior policymakers may not be aware that a 

collection effort they previously approved has become “sensitive” over 

time. 

We recommend that a standing group or office should review 

collection activities for “sensitive” activities on an ongoing basis. This 

Sensitive Activities Office should include both policymakers and 

intelligence collection managers, assigned perhaps for 12-18 month 

rotations. The Sensitive Activities Office would nominate collection efforts 

for senior-level consideration if necessary between annual NIPF reviews. 

The Sensitive Activities Office should include staff from nontraditional national security organizations such as the National Economic 

Council, Treasury, Commerce, and the Trade Representative. In addition, 

any department should be able to request a review of ongoing intelligence 

collection by the Sensitive Activities Office at any time, in light of new 

developments or evolving situations of which they are aware. The Sensitive 

Activities Office should be housed and supported by the ODNI, but should 

report regularly, through the DNI, to a policy-level official in the National 

Security Staff (NSS). 
170 

The goal of this strengthened NIPF is to ensure that the United States 

collects all of the information it legitimately needs and as little more than 

that as possible, and that we collect not because we can, but because we 

must for our national security, that of our allies, and in support of the 

international community. 

Toward that end, the Principals reviewing intelligence collection 

should re-institute use of the so-called “Front-Page Rule.” That informal 

precept, long employed by the leaders of US administrations, is that we 

should not engage in any secret, covert, or clandestine activity if we could 

not persuade the American people of the necessity and wisdom of such 

activities were they to learn of them as the result of a leak or other 

disclosure. The corollary of that rule is that if a foreign government’s likely 

negative reaction to a revealed collection effort would outweigh the value 

of the information likely to be obtained, then do not do it. 

C. Leadership Intentions 

Recommendation 19 

We recommend that decisions to engage in surveillance of foreign 

leaders should consider the following criteria: 

(1) Is there a need to engage in such surveillance in order to assess 

significant threats to our national security? 

(2) Is the other nation one with whom we share values and 

interests, with whom we have a cooperative relationship, and 

whose leaders we should accord a high degree of respect and 

deference? 
171 

(3) Is there a reason to believe that the foreign leader may be being 

duplicitous in dealing with senior US officials or is attempting 

to hide information relevant to national security concerns from 

the US? 

(4) Are there other collection means or collection targets that could 

reliably reveal the needed information? 

(5) What would be the negative effects if the leader became aware 

of the US collection, or if citizens of the relevant nation became 

so aware? 

The United States, like all governments, seeks to learn the real 

intentions of leaders of many nations. Historically, some national leaders 

may have told the United States one thing in diplomatic channels, and then 

secretly ordered a very different set of actions. Often the “easiest” way to 

determine or verify intentions may seem to be to monitor leadership 

communications. 

We believe, however, that any decision to engage in surveillance of 

the leaders of a foreign nation must be taken with great care. For a variety 

of reasons, the stakes in such decisions can be quite high. Although general 

principles may not themselves resolve close and difficult cases, they can 

help to ensure a proper focus on the relevant considerations and a degree 

of consistency in our judgments. Here as elsewhere, risk management is 

central. The decision to engage in surveillance of foreign leaders must 

address and manage multiple risks. 
172 

The first task in this inquiry must be to consider the various purposes 

for which such information might be sought. In some instances, 

information might be sought in order to reduce significant risks to national 

security or to learn the views of foreign leaders regarding critical national 

security issues, where those views have not been shared with the United 

States. In other instances, information might be sought in order to learn 

about the intentions of the leaders of other nations, even when no threat to 

our national security is involved. The latter instances might involve an 

interest in acquiring information that might prove useful as United States 

officials plan for meetings and discussions with other nations on bilateral 

economic issues. In such circumstances, it might be helpful to know in 

advance about another nation’s internal concerns and priorities or about its 

planned negotiating strategy but it is not critical to national security. 

Different interests have different weights. 

The second task is to consider the nations from whom information 

might be collected. In some instances, we might seek to collect information 

from the leaders of nations with whom the United States has a hostile 

relationship. Other nations are our friends and allies, and we may have 

close and supportive relationships with them. 

In making judgments about whether to engage in surveillance of 

foreign leaders, we suggest that these questions should be considered: (1) 

Is there a need to engage in such surveillance in order to assess significant 

threats to our national security? (2) Is the other nation one with whom we 

share values and interests, with whom we have a cooperative relationship, 
173 

and whose leaders we should accord a high degree of respect and 

deference? (3) Is there a reason to believe the foreign leader may be being 

duplicitous in dealing with senior US officials or is attempting to hide 

information relevant to national security concerns from the US? (4) Are 

there other collection means or collection targets that could reliably reveal 

the needed information? (5) What would be the negative effects if the 

leader became aware of the US collection, or if citizens of the relevant 

nation became so aware? These questions can helpfully orient sensitive 

judgments. 

Recommendation 20 

We recommend that the US Government should examine the 

feasibility of creating software that would allow the National Security 

Agency and other intelligence agencies more easily to conduct targeted 

information acquisition rather than bulk-data collection. 

In the course of our review, we have been struck by the fact that the 

nature of IT networks and current intelligence collection technology is such 

that it is often necessary to ingest large amounts of data in order to acquire 

a limited amount of required data. E-mails, telephone calls, and other 

communications are moved on networks as a series of small packets, then 

reassembled at the receiving end. Often those packets are interspersed in 

transit with packets from different originators. To intercept one message, 

pieces of many other messages might be recorded and placed in 

government databases, at least temporarily. Frequently, too, it is more costeffective and less likely to be detected by the transmitter if the collection of 
174 

a message occurs in transit, mixed up with many others, rather than at the 

source. 

It might reduce budgetary costs and political risk if technical 

collection agencies could make use of artificial intelligence software that 

could be launched onto networks and would be able to determine in real 

time what precise information packets should be collected. Such smart 

software would be making the sorting decision online, as distinguished 

from the current situation in which vast amounts of data are swept up and 

the sorting is done after it has been copied on to data storages systems. We 

are unable to determine whether this concept is feasible or fantasy, but we 

suggest that it should be examined by an interagency information 

technology research team. 

D. Cooperation with Our Allies 

Recommendation 21 

We recommend that with a small number of closely allied 

governments, meeting specific criteria, the US Government should 

explore understandings or arrangements regarding intelligence 

collection guidelines and practices with respect to each others’ citizens 

(including, if and where appropriate, intentions, strictures, or limitations 

with respect to collections). The criteria should include: 

(1) shared national security objectives; 

(2) a close, open, honest, and cooperative relationship between 

senior-level policy officials; and 
175 

(3) a relationship between intelligence services characterized both 

by the sharing of intelligence information and analytic thinking 

and by operational cooperation against critical targets of joint 

national security concern. Discussions of such understandings 

or arrangements should be done between relevant intelligence 

communities, with senior policy-level oversight. 

We suggest that the US Government should work with closely allied 

nations to explore understanding or arrangements regarding intelligence 

collection guidelines and practices with respect to each others’ citizens. It is 

important to emphasize that the United States has not entered into formal 

agreements with other nations not to collect information on each others’ 

citizens. There are no such formal agreements. With a very small number 

of governments, however, there are bilateral arrangements or 

understandings on this issue (which include, in appropriate cases, 

intentions, strictures, and limitations with respect to collection). These 

bilateral relationships are based on decades of familiarity, transparency, 

and past performance between the relevant policy and intelligence 

communities. 

The United States should be willing to explore the possibility of 

reaching similar arrangements and understandings with a small number of 

other closely allied governments. Such relationships should be entered into 

with care and require senior policy-level involvement. We anticipate that 

only a very few new such relationships are likely in the short to medium 

term. 
176 

In choosing with which nations to have such discussions, the US 

Government should have explicit criteria in mind and should share those 

criteria with interested governments. The criteria should include (1) shared 

national security policy objectives between the two governments; (2) a 

close, open, and honest relationship between the policy officials of the two 

nations; and (3) a close working relationships between the countries’ 

intelligence services, including the sharing of a broad range of intelligence 

information; analytic and operational cooperation involving intelligence 

targets of common interest; and the ability to handle intelligence 

information with great care. 

The US Government has indicated that it is considering disclosing 

publicly the procedures that the Intelligence Community follows in the 

handling of foreign intelligence information it collects pertaining to non-US 

persons. We encourage the Government to make such procedures known. 

The individual agencies’ performance in implementing these procedures 

should be overseen both by the Director of National Intelligence—with 

regular reports to senior-level policy officials—and by the two 

Congressional Intelligence Committees. 
177 

Chapter VI 

Organizational Reform in Light of Changing Communications 

Technology 

A. Introduction 

A central theme of this Report is the importance of achieving 

multiple goals, including: (1) combating threats to the national security; (2) 

protecting other national security and foreign policy interests; (3) assuring 

fundamental rights to privacy; (4) preserving democracy, civil liberties, and 

the rule of law; (5) supporting a robust, innovative, and free Internet; and 

(6) protecting strategic relationships. This chapter identifies organizational 

structures designed to achieve these goals in light of changes in 

communications technology. 

For reasons deeply rooted in the history of the intelligence enterprise, 

the current organizational structure has been overwhelmingly focused on 

the goal of combating threats to national security. NSA grew out of signals 

intelligence efforts during World War II. From then until the end of the 

Cold War, NSA targeted its efforts on nation states, outside of the US, often 

in foreign combat zones that were distant from home. 

By contrast, our intelligence efforts now target nonstate actors, 

including terrorist organizations for whom borders are often not an 

obstacle. As the Section 215 program illustrates, the traditional distinction 

between foreign and domestic has become less clear. The distinction 

between military and civilian has also become less clear, now that the same 
178 

communications devices, software, and networks are used both in war 

zones such as Iraq and Afghanistan and in the rest of the world. Similarly, 

the distinction between war and non-war is less clear, as the United States 

stays vigilant against daily cyber security attacks as well as other threats 

from abroad. 

The organizational structure of the Intelligence Community should 

reflect these changes. Today, communications devices, software, and 

networks are often “dual-use”—used for both military and civilian 

purposes. Both military and civilian goals are thus implicated by signals 

intelligence and surveillance of communications systems. Chapter V 

addressed the need for a new policy process to oversee sensitive 

intelligence collections, drawing on multiple federal agencies and multiple 

national goals. This chapter identifies key organizational changes, 

including: 

• Re-organization of NSA to refocus the agency on its core mission of 

foreign intelligence; 

• Creation of a new Civil Liberties and Privacy Protection Board (CLPP 

Board) to expand beyond the statutory limits of the existing Privacy 

and Civil Liberties Oversight Board (PCLOB); and 

• Changes to the FISC to create a Public Interest Advocate, increase 

transparency, and improve the appointment process. 
179 

B. The National Security Agency 

We recommend major changes to the structure of the National 

Security Agency. There should be greater civilian control over the agency, 

including Senate confirmation for the Director and openness to having a 

civilian Director. NSA should refocus on its core function: the collection 

and use of foreign intelligence information. To distinguish the warfighting 

role from the intelligence role, the military Cyber-Command should not be 

led by the NSA Director. Because the defense of both civilian and 

government cyber-systems has become more important in recent years, we 

recommend splitting the defensive mission of NSA’s Information 

Assurance Directorate into a separate organization. 

Before discussing these recommendations, we offer some general 

observations. No other organization in the world has the breadth and 

depth of capabilities NSA possesses; its prowess in the realm of signals 

intelligence is extraordinary. Since World War II, NSA and its predecessors 

have worked to keep our nation and our allies safe from attack. SIGINT 

collected by NSA is used daily to support our warfighters and to combat 

terrorism, the proliferation of weapons of mass destruction, and 

international criminal and narcotics cartels. Its successes make it possible 

for the United States and our allies around the world to safeguard our 

citizens and prevent death, disaster, and destruction. 

In addition to its leading-edge technological developments and 

operations, NSA employs large numbers of highly trained, qualified, and 

professional staff. The hard work and dedication to mission of NSA’s work 
180 

force is apparent. NSA has increased the staff in its compliance office and 

addressed many concerns expressed previously by the FISC and others. 

After the terrorist acts in the United States of September 11, 2001, 

many people in both the Legislative and Executive Branches of government 

believed that substantial new measures were needed to protect our 

national security. We have noted that if a similar or worse incident or series 

of attacks were to occur in the future, many Americans, in the fear and heat 

of the moment, might support new restrictions on civil liberties and 

privacy. The powerful existing and potential capabilities of our intelligence 

and law enforcement agencies might be unleashed without adequate 

controls. Once unleashed, it could be difficult to roll back these sacrifices of 

freedom. 

Our recommendations about NSA are designed in part to create 

checks and balances that would make it more difficult in the future to 

impose excessive government surveillance. Of course, no structural 

reforms create perfect safeguards. But it is possible to make restraint more 

likely. Vigilance is required in every age to maintain liberty. 

1. “Dual-Use” Technologies: The Convergence of Civilian 

Communications and Intelligence Collection

Our recommended organizational changes are informed by the recent 

history of communications technologies. For the most part, signals 

intelligence during World War II and the Cold War did not involve 

collection and use on the equipment and networks used by ordinary 

Americans. Signals intelligence today, by contrast, pervasively involves 
181 

the communications devices, software, and networks that are also used by 

ordinary Americans and citizens of other countries. When the equipment 

and networks were separate, there was relatively little reason for decisions 

about signals intelligence to be part of a wide-ranging policy inquiry into 

the interest of the United States. But when the devices, software, and 

networks are the same as those used by ordinary Americans (and ordinary 

citizens of other countries), then multiple and significant policy concerns 

come into play. 

As a result of changing technology, key distinctions about 

intelligence and communications technology have eroded over time: state 

vs. nonstate, foreign vs. domestic, war vs. non-war, and military vs. 

civilian. As a result, many communications technologies today are “dualuse”—used for both civilian and military purposes. For ordinary civilians, 

this means that our daily communications get swept up into Intelligence 

Community databases. For the military, it means that what used to be 

purely military activities often now have important effects on private 

citizens. 

1. From nation-states to well-hidden terrorists. During the Cold War, 

our intelligence efforts were directed against foreign powers, notably the 

Soviet Union, and agents of foreign powers, such as Soviet agents in the US 

who were placed under FISA wiretap orders. After the terrorist attacks of 

September 11, 2001, the emphasis shifted to fighting terrorism. In 

counterterrorism efforts, a major priority is to identify potential or actual 
182 

terrorists, who seek to hide their communications in the vast sea of other 

communications. 

The Section 215 telephone database, for instance, was designed to 

find links between suspected terrorists and previously unknown threats. It 

is one of many databases created after the terrorist attacks of September 11, 

2001 in order to “connect the dots” and discover terrorist threats. One 

result of the focus on counterterrorism has been that the Intelligence 

Community has broadened its focus from state actors to a large number of 

nonstate actors. Another result is that the communications of ordinary 

citizens are placed into intelligence databases, increasing the effects of 

SIGINT policy choices on individuals and businesses. 

2. From domestic to foreign. For ordinary citizens, the distinction 

between domestic and foreign communications has eroded over time. As 

the Director of National Intelligence, General James Clapper, has testified 

before Congress,159 much of the intelligence collection during the Cold War 

occurred in separate communications systems. Behind the Iron Curtain, 

the communications of the Soviet Union and its allies were largely separate 

from other nations. Direct communications from ordinary Americans to 

Communist nations were a tiny fraction of electronic communications. By 

contrast, the Internet is global. Terrorists and their allies use the same 

Internet as ordinary Americans. 

 

159 Potential Changes to the Foreign Intelligence Surveillance Act: Open Hearing Before the H.P. Select 

Comm. on Intelligence, 113 Cong. (October 29, 2013) (Statement of James R. Clapper, Director of National 

Intelligence).
183 

During the Cold War, ordinary Americans used the telephone for 

many local calls, but they were cautious about expensive “long-distance” 

calls to other area codes and were even more cautious about the especially 

expensive “international” phone calls. Many people today, by contrast, 

treat the idea of “long-distance” or “international” calls as a relic of the 

past. We make international calls through purchases of inexpensive phone 

cards or free global video services. International e-mails are cost-free for 

users. 

The pervasively international nature of communications today was 

the principal rationale for creating Section 702 and other parts of the FISA 

Amendments Act of 2008. In addition, any communication on the Internet 

might be routed through a location outside of the United States, in which 

case FISA does not apply and collection is governed under broader 

authorities such as Executive Order 12333. Today, and unbeknownst to US 

users, websites and cloud servers may be located outside the United States. 

Even for a person in the US who never knowingly sends communications 

abroad, there may be collection by US intelligence agencies outside of the 

US. 160 The cross-border nature of today’s communications suggests that 

when decisions are made about foreign surveillance, there is a need for 

greater consideration of policy goals involving the protection of civilian 

commerce and individual privacy. 

 

160 See Jonathan Mayer, “The Web is Flat” Oct. 30, 2013 (study showing “pervasive” flow of web browsing 

data outside of the US for US individuals using US-based websites), available at 

http://webpolicy.org/2013/10/30/the-web-is-flat/.
184 

3. From wartime to continuous responses to cyber and other threats. In 

recent decades, the global nature of the Internet has enabled daily cyberattacks on the communications of government, business, and ordinary 

Americans by hackers, organized crime, terrorists, and nation-states. As a 

result, the development of high-quality defenses against such attacks has 

become a priority for civilian as well as military systems. In wartime, the 

military anticipates that the adversary will try to jam communications and 

take other measures to interfere with its ability to carry out operations. For 

this reason, the military has long required an effective defensive capability 

for its communications, called an “information assurance” capability. With 

cyber-attacks, often launched from overseas, information assurance now is 

needed outside the military context as well. 

The convergence of military and civilian systems for cyber security 

has three implications. First, information assurance for the military relies 

increasingly on information assurance in the civilian sector. With the use 

of commercial off-the-shelf hardware and software, many military systems 

are now the same as or similar to civilian systems. The military and the US 

Government rely on a broad range of critical infrastructure, which is 

mostly owned and operated by the civilian sector. Effective defense of 

civilian-side hardware, software, and infrastructure is critical to military 

and other government functions. 

Second, the military chain of command does not apply to the civilian 

sector. For traditional information assurance, the military could depend on 

its own personnel and systems to fix communications problems caused by 
185 

the adversary—the military could secretly order its personnel how to 

respond to a problem. But that sort of chain of command does not work in 

the civilian sector, where patches and other defensive measures must be 

communicated to a multitude of civilian system owners. It is usually not 

possible to communicate effective defensive measures without also tipping 

off adversaries about our vulnerabilities and responses. 

Third, these changes create a greater tension between offense and 

defense. When the military can keep secrets within the chain of command, 

then the offensive measures used in intelligence collection or cyber attacks 

can safely go forward. The offense remains useful, and the military can 

defend its own systems. Where there is no chain of command, however, 

there is no secret way for the defenders to patch their systems. Those 

charged with offensive responsibilities still seek to collect SIGINT or carry 

out cyber attacks. By contrast, those charged with information assurance 

have no effective way to protect the multitude of exposed systems from the 

attacks. The SIGINT function and the information assurance function 

conflict more fundamentally than before. This conclusion supports our 

recommendation to split the Information Assurance Directorate of NSA 

into a separate organization. 

4. From military combat zones to civilian communications. An 

important change, which has received relatively little attention, concerns 

the military significance of the communications devices, software, and 

networks used by ordinary Americans. In certain ways the military nature 

of signals intelligence is well known—NSA is part of the Department of 
186 

Defense (DOD), the current Director of NSA is a general, and the military’s 

Cyber Command is led by the same general. Much less appreciated are (1) 

the possible effect that active combat operations in Iraq and Afghanistan 

have had on decisions about what intelligence activities are appropriate 

and (2) the increasing overlap between signals intelligence for military 

purposes and the communications of ordinary Americans and citizens of 

other countries. 

The convergence of military and civilian communications is 

important in light of the drastically different expectations of government 

surveillance. In wartime, during active military operations, signals 

intelligence directed at the enemy must be highly aggressive and largely 

unrestrained. The United States and its allies gained vital military 

intelligence during World War II by breaking German and Japanese codes. 

During the Cold War, the United States established listening stations on the 

edges of the Soviet Union in order to intercept communications. More 

recently, there are powerful arguments for strong measures to intercept 

communications to prevent or detect attacks on American troops in Iraq 

and Afghanistan. During military operations, the goal is information 

dominance, to protect the lives and safety of US forces and to meet military 

objectives. The same rules do not apply on the home front. 

A significant challenge today is that a wide and increasing range of 

communications technologies is used in both military and civilian settings. 

The same mobile phones, laptops, and other consumer goods used in 

combat zones are often used in the rest of the world. The same is true for 
187 

software, such as operating systems, encryption protocols, and 

applications. Similarly, routers, fiber optic, and other networking features 

link combat zones with the rest of the global Internet. Today, no battlefield 

lines or Iron Curtain separates the communications in combat zones from 

the rest of the world. A vulnerability that can be exploited on the battlefield 

can also be exploited elsewhere. The policy challenge is how to achieve our 

military goals in combat zones without undermining the privacy and 

security of our communications elsewhere. In responding to this challenge, 

it remains vital to allow vigorous pursuit of military goals in combat zones 

and to avoid creating a chilling effect on the actions of our armed forces 

there. 

The public debate has generally focused on the counterterrorism 

rationale for expanded surveillance since the terrorist attacks of September 

11, 2001. We believe that the military missions in Iraq and Afghanistan 

have also had a large but difficult-to-measure impact on decisions about 

technical collection and communications technologies. Going forward, 

even where a military rationale exists for information collection and use, 

there increasingly will be countervailing reasons not to see the issue in 

purely military terms. The convergence of military and civilian 

communications supports our recommendations for greater civilian control 

of NSA as well as a separation of NSA from US Cyber Command. It is vital 

for our intelligence agencies to support our warfighters, but we must 

develop governance structures attuned to the multiple goals of US policy. 
188 

2. Specific Organizational Reforms

Recommendation 22 

We recommend that: 

(1) the Director of the National Security Agency should be a 

Senate-confirmed position; 

(2) civilians should be eligible to hold that position; and 

(3) the President should give serious consideration to making the 

next Director of the National Security Agency a civilian. 

The Director of NSA has not been a Senate-confirmed position; 

selection has been in the hands of the President alone. Because of the great 

impact of NSA actions, the need for public confidence in the Director, the 

value of public trust, and the importance of the traditional system of checks 

and balances, Senate confirmation is appropriate. Senate confirmation 

would increase both transparency and accountability. 

When appointing the directors of other intelligence organizations, 

Presidents have exercised their discretion to choose from the ranks of both 

civilian and military personnel. Both active duty military officers and 

civilians have been selected to be the Director of the CIA and the Director 

of the National Reconnaissance (NRO). It is important to the future of NSA 

that it be understood by the American people to be acting under 

appropriate controls and supervision. 

For this reason, civilians should be eligible for the position. The 

convergence of civilian and military communications technology makes it 
189 

increasingly important to have civilian leadership to complement NSA’s 

military and intelligence missions. We believe that the President should 

seriously consider appointing a civilian to be the next Director of NSA, 

thus making it clear that NSA operates under civilian control. A senior 

(two or three-star) military officer should be among the Deputy Directors. 

Recommendation 23 

We recommend that the National Security Agency should be 

clearly designated as a foreign intelligence organization; missions other 

than foreign intelligence collection should generally be reassigned 

elsewhere. 

NSA now has multiple missions and mandates, some of which are 

blurred, inherently conflicting, or both. Fundamentally, NSA is and should 

be a foreign intelligence organization. It should not be a domestic security 

service, a military command, or an information assurance organization. 

Because of its extraordinary capabilities, effective oversight must exist 

outside of the Agency. 

In some respects, NSA is now both a military and a civilian 

organization. It has always been led by a military flag rank officer, and its 

incumbent also serves as the head of a combatant command (US Cyber 

Command). As matter of history, the evolution in the roles and missions of 

NSA is understandable; those roles have emerged as a result of a series of 

historical contingencies and perceived necessities and conveniences. But if 

the nation were writing on a blank slate, we believe it unlikely that we 

would create the current organization. 
190 

The President should make it clear that NSA’s primary mission is the 

collection of foreign intelligence, including the support of our warfighters. 

Like other agencies, there are situations in which NSA does and should 

provide support to the Department of Justice, the Department of 

Homeland Security, and other law enforcement entities. But it should not 

assume the lead for programs that are primarily domestic in nature. 

Missions that do not involve the collection of foreign intelligence should 

generally be assigned elsewhere. 

Recommendation 24 

We recommend that the head of the military unit, US Cyber 

Command, and the Director of the National Security Agency should not 

be a single official. 

As the Pentagon has recognized, it is essential for the United States 

military to have an effective combatant command for cyberspace activities. 

The importance of this command will likely grow over time, as specialized 

cyber capabilities become a growing part of both offense and defense. But 

the military organization created under Title 10 of the US Code (Defense 

and military organizations) should be separate from the foreign 

intelligence agencies created under Title 50 (Intelligence). Just as NSA has 

provided essential support to US Central Command in the recent wars in 

Iraq and Afghanistan, NSA should provide intelligence support to US 

Cyber Command. Nonetheless, there is a pressing need to clarify the 

distinction between the combat and intelligence collection missions. 

Standard military doctrine does not place the intelligence function in 
191 

control of actual combat. Because the two roles are complementary but 

distinct, the Director of NSA and the Commander of US Cyber Command 

in the future should not be the same person. Now that Cyber Command 

has grown past its initial stages, the risk increases that a single commander 

will not be the best way to achieve the two distinct functions. 

Recommendation 25 

We recommend that the Information Assurance Directorate—a 

large component of the National Security Agency that is not engaged in 

activities related to foreign intelligence—should become a separate 

agency within the Department of Defense, reporting to the cyber policy 

element within the Office of the Secretary of Defense. 

In keeping with the concept that NSA should be a foreign intelligence 

agency, the large and important Information Assurance Directorate (IAD) 

of NSA should be organizationally separate and have a different reporting 

structure. IAD’s primary mission is to ensure the security of the DOD’s 

communications systems. Over time, the importance has grown of its other 

missions and activities, such as providing support for the security of other 

US Government networks and making contributions to the overall field of 

cyber security, including for the vast bulk of US systems that are outside of 

the government. Those are not missions of a foreign intelligence agency. 

The historical mission of protecting the military’s communications is today 

a diminishing subset of overall cyber security efforts. 

We are concerned that having IAD embedded in a foreign 

intelligence organization creates potential conflicts of interest. A chief goal 
192 

of NSA is to access and decrypt SIGINT, an offensive capability. By 

contrast, IAD’s job is defense. When the offensive personnel find some way 

into a communications device, software system, or network, they may be 

reluctant to have a patch that blocks their own access. This conflict of 

interest has been a prominent feature of recent writings by technologists 

about surveillance issues. 161

A related concern about keeping IAD in NSA is that there can be an 

asymmetry within a bureaucracy between offense and defense—a 

successful offensive effort provides new intelligence that is visible to senior 

management, while the steady day-to-day efforts on defense offer fewer 

opportunities for dramatic success. 

Another reason to separate IAD from NSA is to foster better relations 

with the private sector, academic experts, and other cyber security 

stakeholders. Precisely because so much of cyber security exists in the 

private sector, including for critical infrastructure, it is vital to maintain 

public trust. Our discussions with a range of experts have highlighted a 

current lack of trust that NSA is committed to the defensive mission. 

Creating a new organizational structure would help rebuild that trust 

going forward. 

There are, of course, strong technical reasons for information-sharing 

between the offense and defense for cyber security. Individual experts 

learn by having experience both in penetrating systems and in seeking to 

 

161 Susan Landau, Surveillance or Security: The Risks Posed by New Wiretapping Technologies (MIT Press 

2011); Jon M. Peha, The Dangerous Policy of Weakening Security to Facilitate Surveillance, Oct. 4, 2013, 

available at http://ssrn.com/abstract=2350929.
193 

block penetration. Such collaboration could and must occur even if IAD is 

organizationally separate. 

In an ideal world, IAD could form the core of the cyber capability of 

DHS. DHS has been designated as the lead cabinet department for cyber 

security defense. Any effort to transfer IAD out of the Defense Department 

budget, however, would likely meet with opposition in Congress.162 Thus, 

we suggest that IAD should become a Defense Agency, with status similar 

to that of the Defense Information Systems Agency (DISA) or the Defense 

Threat Reduction Agency (DTRA). Under this approach, the new and 

separate Defense Information Assurance Agency (DIAA) would no longer 

report through intelligence channels, but would be subject to oversight by 

the cyber security policy arm of the Office of the Secretary of Defense. 

C. Reforming Organizations Dedicated to the Protection of Privacy and 

Civil Liberties 

The Executive Branch should adopt structural reforms to protect 

privacy and civil liberties in connection with intelligence collection and the 

use of personal information. Specifically, the Executive Branch should 

improve its policies and procedures in the realms of policy clearance and 

development, compliance, oversight and investigations, and technology 

assessment. 

A fundamental theme of this Report is that the fact that the 

intelligence community is able to collect personal information does not 

mean that it should do so. Similarly, the fact that collection is legal does 

 

162 Although DHS was created ten years ago, Congress has yet to readjust its committees of jurisdiction. 
194 

not mean that it is good policy. The Intelligence Community’s ability to 

collect and use information has expanded exponentially with the increased 

use of electronic communications technologies. The priority placed on 

national security after the attacks of September 11, including large budget 

increases, has made possible an enormous range of new collection and 

sharing capabilities, both within and outside the United States, on scales 

greater than previously imagined. 

With this expansion of capabilities, there should be an accompanying 

set of institutions, properly funded, to ensure that the overall national 

interest is achieved in connection with intelligence collection and use. We 

recommend institutional changes within the Executive Branch designed to 

strengthen (1) policy clearance and development; (2) compliance; (3) 

oversight; and (4) technology assessment. 

Recommendation 26 

We recommend the creation of a privacy and civil liberties policy 

official located both in the National Security Staff and the Office of 

Management and Budget. 

In some recent periods , the NSS, reporting in the White House to the 

President’s National Security Advisor, has had a civil servant tasked with 

privacy issues. During that time, the Office of Management and Budget 

(OMB), which in its management role oversees privacy and cyber security, 

has similarly had a civil servant with privacy responsibilities. We 

recommend that the President name a policy official, who would sit within 
195 

both the NSS and the OMB, to coordinate US Government policy on 

privacy, including issues within the Intelligence Community. 

This position would resemble in some respects the position of Chief 

Counselor for Privacy in OMB under President Clinton, from 1999 until 

early 2001. There are several reasons for creating this position: First, the 

OMB-run clearance process is an efficient and effective way to ensure that 

privacy issues are considered by policymakers. Second, a political 

appointee is more likely to be effective than a civil servant. Third, 

identifying a single, publicly named official provides a focal point for 

outside experts, advocacy groups, industry, foreign governments, and 

others to inform the policy process. Fourth, this policy development role is 

distinct from that of ensuring compliance by the agencies.163 

Recommendation 27 

We recommend that: 

(1) The charter of the Privacy and Civil Liberties Oversight Board 

should be modified to create a new and strengthened agency, 

the Civil Liberties and Privacy Protection Board , that can 

oversee Intelligence Community activities for foreign 

intelligence purposes, rather than only for counterterrorism 

purposes; 

(2) The Civil Liberties and Privacy Protection Board should be an 

authorized recipient for whistle-blower complaints related to 

 

163 See Peter Swire, “The Administration Response to the Challenges of Protecting Privacy,” Jan. 8, 2000, 

available at www.peterswire.net/pubs. Peter Swire is one of the five members of the Review Group; the 

comments in text are made here on behalf of the entire Review Group. 
196 

privacy and civil liberties concerns from employees in the 

Intelligence Community; 

(3) An Office of Technology Assessment should be created within 

the Civil Liberties and Privacy Protection Board to assess 

Intelligence Community technology initiatives and support 

privacy-enhancing technologies; and 

(4) Some compliance functions, similar to outside auditor functions 

in corporations, should be shifted from the National Security 

Agency and perhaps other intelligence agencies to the Civil 

Liberties and Privacy Protection Board. 

1. Creating the CLPP Board. The 9/11 Commission recommended 

creation of what is now the PCLOB, an independent agency in the 

Executive Branch designed to conduct oversight of Intelligence 

Community activities related to terrorism and to make recommendations 

to Congress and the Executive Branch about how to improve privacy and 

civil liberty protections. The statute that authorizes the PCLOB gives it 

jurisdiction only over information collected and used for anti-terrorism 

purposes. There are major privacy and civil liberties issued raised by 

Intelligence Community collections for other foreign intelligence purposes, 

including anti-proliferation, counter-intelligence, economic policy, and 

other foreign affairs purposes. 

To match the scope of information collection and use, we recommend 

the creation of a new and strengthened Board that has authority to oversee 

the full range of foreign intelligence issues. We have considered whether 
197 

changes should be made to the existing PCLOB, or whether instead it 

would be better to create an entirely new agency with augmented powers. 

An advantage of keeping the PCLOB as the organizational base is that a 

Chair and four Board members have already been confirmed by the Senate 

and are in place. On the other hand, the scope of responsibility that we 

contemplate for the agency is considerably broader than the existing 

PCLOB statute permits. There are also flaws with the current PCLOB 

statute. For those reasons, we recommend creation of a new independent 

agency in the Executive Branch. We refer to this new agency as the Civil 

Liberties and Privacy Protection Board, or CLPP Board. 

Oversight should match the scope of the activity being reviewed. 

Having the new CLPP Board oversee “foreign intelligence” rather than 

“anti-terrorism” would match the scope of FISA. This broader scope would 

reduce any temptation Intelligence Community agencies might have to 

mischaracterize their activities as something other than anti-terrorism in 

order to avoid review by the current PCLOB. 

We anticipate that this expanded scope would call for substantially 

increased funding and staff. With its current small staff, the PCLOB is 

limited in its ability to oversee intelligence agencies operating on the scale 

of tens of billions of dollars. This must be addressed. As with the PCLOB, 

the CLPP Board leadership and staff should have the clearances required to 

oversee this broader range of Intelligence Community activities. As under 

current statutes, the CLPP Board would make regular reports to Congress 

and the public, in a suitable mix of classified and unclassified forms. 
198 

 2. The CLPP Board and Whistle-blowers. We recommend enactment 

of a statute that creates a path for whistle-blowers to report their concerns 

directly to the CLPP Board. Various criticisms have been published about 

the effectiveness of current whistle-blower provisions in the Intelligence 

Community. Although we have not evaluated all of these criticisms, the 

oversight and investigations role of the CLPP Board is well matched to 

examining whistle-blower allegations. 

3. A CLPP Board Office of Technology Assessment. Public policy is 

shaped in part by what is technically possible, and technology experts are 

essential to analyzing the range of the possible. An improved technology 

assessment function is essential to informing policymakers about the range 

of options, both for collection and use of personal information, and also 

about the cost and effectiveness of privacy-enhancing technologies. 

Prior to 1995, Congress had an Office of Technology Assessment that 

did significant studies on privacy and related issues. The OTA was then 

abolished, and no similar federal agency has existed since. Because the 

effectiveness of privacy and civil liberties protections depend heavily on 

the information technology used, a steady stream of new privacy and 

technology issues faces the Intelligence Community. For instance, the last 

few years have seen explosive growth in social networking, cloud 

computing, and Big Data analytics. Because the Intelligence Community 

pushes the state of the art to achieve military and other foreign policy 

objectives, assessment of the technological changes must be up-to-date. 
199 

We therefore recommend that the government should have an Office 

of Technology Assessment that does not report directly to the Intelligence 

Community but that has access to Intelligence Community activities. 

Congress is vital to oversight of the Intelligence Community, but it does 

not have an office to enable it to assess technological developments. The 

CLPP Board, with classified personnel and agency independence, is the 

logical place for this sort of independent assessment. 

 4. Compliance Activities. Although the Compliance program at NSA 

is independent and professional, there may be a public impression that any 

internal oversight function, at any agency, is vulnerable to pressure from 

the agency’s leadership. To increase public trust and overcome even the 

perception of agency bias in NSA Compliance program, some of the 

compliance function and the relevant staff should be transferred to the 

CLPP Board. This structure would be analogous to the complementary 

roles of internal and external auditors familiar in public corporations. 

Under this approach, NSA would retain the internal compliance function, 

with the external function shifting to the CLPP Board. Consideration 

should also be given to transferring elements of other agencies’ compliance 

functions to the CLPP Board. 

 5. Technical Amendments to PCLOB Statute. The current PCLOB 

statute has a number of limitations that reduce its ability to operate 

effectively. If a new CLPP Board is not created, we recommend that 

several changes be made to the PCLOB statute. First, the four members of 

the Board other than the Chair are unpaid government employees who are 
200 

permitted to work only a limited number of days per year on PCLOB 

matters. We recommend that these Board members should be paid for their 

service, and that they should not be restricted in the amount of service they 

provide in a year. Second, the current statute suggests that only the Chair 

can hire staff; any vacancy in the Chair position thus creates uncertainty 

about the legal basis for staff hiring. The statute should be amended to 

ensure smooth functioning of the Board even if the Chair position is vacant. 

Third, the Board should have the ability, held by other federal agencies, to 

subpoena records held in the private sector, without the current prior 

review of subpoena requests by the Attorney General. Fourth, the PCLOB 

needs better institutional assistance from the Intelligence Community to 

ensure administrative support for the Board’s efforts. For instance, Board 

members sometimes need access to a classified facility outside of the 

Washington, DC headquarters, and ODNI or other support would make it 

easier to gain that access. 

D. Reforming the FISA Court 

Recommendation 28 

We recommend that: 

(1) Congress should create the position of Public Interest Advocate 

to represent privacy and civil liberties interests before the 

Foreign Intelligence Surveillance Court; 

(2) the Foreign Intelligence Surveillance Court should have greater 

technological expertise available to the judges; 
201 

(3) the transparency of the Foreign Intelligence Surveillance 

Court’s decisions should be increased, including by instituting 

declassification reviews that comply with existing standards; 

and 

(4) Congress should change the process by which judges are 

appointed to the Foreign Intelligence Surveillance Court, with 

the appointment power divided among the Supreme Court 

Justices. 

As we have seen, the FISC was established by the Foreign 

Intelligence Surveillance Act of 1978. The FISC, which today consists of 

eleven federal district court judges serving staggered seven-year terms, 

was created as a result of recommendations of the Church Committee to 

enable judicial oversight of classified foreign intelligence investigations. 

Most often, the judges of the FISC rule on government applications for the 

issuance of (a) FISA warrants authorizing electronic surveillance, (b) orders 

for section 215 business records, and (c) orders for section 702 interceptions 

targeting non-United States persons who are outside the United States. 

The FISC has a staff of five full-time legal assistants with expertise in 

foreign intelligence issues. When preparing to rule on applications for such 

orders, the FISC’s legal assistants often deal directly with the government’s 

attorneys. Sometimes the judge approves the application without a 

hearing, and sometimes the judge concludes that a hearing with the 

government’s attorneys is appropriate. FISA does not provide a 

mechanism for the FISC to invite the views of nongovernmental parties. 
202 

Rather, the FISC’s proceedings are ex parte, as required by statute, and 

consistent with the procedures followed by other federal courts in ruling 

on applications for search warrants and wiretap orders.164 

Critics of the FISC have noted that the court grants more than 99 

percent of all requested applications. In a recent letter to the Chairman of 

the Senate Judiciary Committee, FISC Presiding Judge Reggie Walton 

explained that this statistic is misleading, because that figure does “not 

reflect the fact that many applications are altered prior to final submission 

or even withheld from final submission entirely, often after an indication 

that a judge would not approve them.”165 Judge Walton’s explanation 

seems quite credible. Moreover, this understanding of the FISC’s approach 

is reinforced by the FISC’s strong record in dealing with non-compliance 

issues when they are brought to its attention. As illustrated by the section 

215 and section 702 non-compliance incidents discussed in chapters III and 

IV of this Report, the FISC takes seriously its responsibility to hold the 

government accountable for its errors. 

We believe that reform of the FISC in the following areas will 

strengthen its ability to serve the national security interests of the United 

 

164 In one instance, the FISC heard arguments from a non-governmental party that sought to contest a 

directive from the government. In 2007, Yahoo declined to comply with a directive from the government. 

The government then filed a motion with the FISC to compel compliance. The FISC received briefings 

from both Yahoo and the government, and then rendered its decision in 2008 in favor of the government. 

Yahoo then appealed unsuccessfully to the FISA Court of Review. See In re Directives [Redacted Version] 

Pursuant to Section 105b of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008). In 

several other instances, private parties, including the American Civil Liberties Union and the Electronic 

Frontier Foundation, Google, Inc., Microsoft Corporation, and the Media Freedom and Information 

Access Clinic, filed motions with the FISC seeking the release or disclosure of certain records. See Letter 

from Chief Judge Reggie Walton to Honorable Patrick Leahy (July 29, 2013); In re Motion for Release of 

Court Records, 526 F. Supp. 484 (FISA Ct. 2007). 

165 Letter from Chief Judge Reggie Walton to Honorable Patrick Leahy (July 29, 2013). 
203 

States while protecting privacy and civil liberties and promoting greater 

transparency. 

(a) Establishing a Public Interest Advocate. Our legal tradition is 

committed to the adversary system. When the government initiates a 

proceeding against a person, that person is usually entitled to 

representation by an advocate who is committed to protecting her interests. 

If it is functioning well, the adversary system is an engine of truth. It is 

built on the assumption that judges are in a better position to find the right 

answer on questions of law and fact when they hear competing views. 

When the FISC was created, it was assumed that it would resolve 

routine and individualized questions of fact, akin to those involved when 

the government seeks a search warrant. It was not anticipated that the FISC 

would address the kinds of questions that benefit from, or require, an 

adversary presentation. When the government applies for a warrant, it 

must establish “probable cause,” but an adversary proceeding is not 

involved. As both technology and the law have evolved over time, 

however, the FISC is sometimes presented with novel and complex issues 

of law. The resolution of such issues would benefit from an adversary 

proceeding. 

A good example is the question whether section 215 authorized the 

bulk telephony meta-data program. That question posed serious and 

difficult questions of statutory and constitutional interpretation about 

which reasonable lawyers and judges could certainly differ. On such a 

question, an adversary presentation of the competing arguments is likely to 
204 

result in a better decision. Hearing only the government’s side of the 

question leaves the judge without a researched and informed presentation 

of an opposing view. 

We recommend that Congress should create a Public Interest 

Advocate, who would have the authority to intervene in matters that raise 

such issues. The central task of the Public Interest Advocate would be to 

represent the interests of those whose rights of privacy or civil liberties 

might be at stake. The Advocate might be invited to participate by a FISC 

judge. In addition, and because a judge might not always appreciate the 

importance of an adversary proceeding in advance, we recommend that 

the Advocate should receive docketing information about applications to 

the FISC, enabling her to intervene on her own initiative (that is, without 

an invitation from a FISC judge). 

One difficult issue is where the Advocate should be housed. Because 

the number of FISA applications that raise novel or contentious issues is 

probably small, the Advocate might find herself with relatively little to do. 

It might therefore be sensible for the Advocate to have other 

responsibilities. One possibility would be for the Public Advocate to be on 

the staff of the CLPP Board, thus giving her other responsibilities and 

providing knowledge about the workings of the intelligence agencies. A 

drawback of this approach is that the Board has multiple roles, and it is 

possible that the presence of the Public Advocate in that setting might 

create conflicts of interest. Another possibility is to outsource the Public 

Advocate responsibility either to a law firm or a public interest group for a 
205 

sufficiently long period that its lawyers could obtain the necessary 

clearances and have continuity of knowledge about the intelligence 

agencies.166 Under the former approach, the Advocate would be designated 

by the CLPP Board from among its employees; under the latter, the CLPP 

Board could oversee a procurement process to appoint the outside group of 

lawyers. 

(b) Bolster Technological Capacity. The recently published opinions 

of the FISC make evident the technological complexity of many of the 

issues that now come before it. The compliance issues involving section 215 

and 702 illustrate this reality and the extent to which it is important for the 

FISC to have the expertise available to it to oversee such issues. 

Rather than relying predominantly on staff lawyers in its efforts to 

address these matters, the FISC should be able to call on independent 

technologists, with appropriate clearances, who do not report to NSA or 

Department of Justice. One approach would be for the FISC to use the 

court-appointed experts; another would be for the FISC to draw upon 

technologists who work with the CLPP Board. 

(c) Transparency. The US Government should re-examine the process 

by which decisions issued by the FISC and its appellate body, the Foreign 

Intelligence Surveillance Court of Review (FISC-R) are reviewed for 

declassification and determine whether it ought to implement a more 

 

166 Other possible institutional homes for the Advocate appear to have serious shortcomings. Housing 

the Public Advocate with the FISC would run the risk of the Advocate often having little or nothing to do. 

Housing the Advocate within the Department of Justice would undermine the independence of the 

Advocate from the opposing brief writers in the case, who would also be in the same Department. Using 

a rotating panel of outside lawyers would risk a loss of continuity and knowledge about classified 

programs. 
206 

robust and regimented process of declassification of decisions to improve 

transparency. 

The majority of the FISC’s orders and filings are classified “Secret” or 

“Top Secret” using the standards set forth in Section 1 of Executive Order 

13526 issued by President Obama on December 29, 2009. Under this 

Executive Order, classified national security information is subject to 

automatic declassification review upon passage of 25 years. 

Pursuant to the Department of Justice’s Automatic Classification 

Guide dated November 2012, “FISA Files”167 are exempted from automatic 

declassification review at 25 years under a “File Series Exemption” granted 

by the Assistant to the President for National Security Affairs on October 5, 

2006. These records are not subject to automatic declassification review 

until they reach 50 years in age from the date they were created. 

Consequently, the public is left uninformed as to decisions that may have 

far-reaching implications in terms of how the FISC interpreted the law. 

The very idea of the rule of law requires a high degree of 

transparency. Transparency promotes accountability. As Justice Louis 

Brandeis once observed, sunlight can be “the best of disinfectants.”168 A 

lack of transparency can also breed confusion, suspicion, and distrust. In 

our system, judicial proceedings are generally open to the public, and 

 

167 “FISA Files” are files relating to the Foreign Intelligence Surveillance Act (FISA). These “FISA Files” 

may include the following: a request to initiate collection activity; an application; court order or 

authorization by the Attorney General; draft documents; related memoranda; motions, affidavits, filings, 

correspondence, and electronic communications; and other related documents or records. See p. 8 of 

United States Department of Justice “Automatic Declassification Guide — FOR USE AND REVIEW AND 

DECLASSIFICATION OF RECORDS UNDER EXECUTIVE ORDER 13526, “CLASSIFIED NATIONAL 

SECURITY INFORMATION.” 

168 Louis Brandeis, Other People’s Money – And How Bankers Use It, Chapter 5 (1914). 
207 

judicial opinions are made available for public scrutiny and inspection. 

Indeed, the ODNI has declassified a considerable number of FISC opinions 

in 2013, making the determination that the gains from transparency 

outweighed the risk to national security. 

There can, of course, be a genuine need for confidentiality, especially 

when classified material is involved. When the FISC is dealing with such 

material, there are legitimate limits on disclosure. But in order to further 

the rule of law, FISC opinions or, when appropriate, redacted versions of 

FISC opinions, should be made public in a timely manner, unless secrecy of 

the opinion is essential to the effectiveness of a properly classified 

program. 

(d) Selection and Composition of the FISC. Under FISA, the judges 

on the FISC are selected by the Chief Justice of the United States. In theory, 

this method of selection has significant advantages. Concentration of the 

power of appointment in one person can make the process more orderly 

and organized. But that approach has drawn two legitimate criticisms. 

The first involves the potential risks associated with giving a single 

person, even the Chief Justice, the authority to select all of the members of 

an important court. The second involves the fact that ten of the eleven 

current FISC judges, all of whom were appointed by the current Chief 

Justice, were appointed to the federal bench by Republican presidents. 

Although the role of a judge is to follow the law and not to make political 

judgments, Republican-appointed and Democratic-appointed judges 

sometimes have divergent views, including on issues involving privacy, 
208 

civil liberties, and claims of national security. There is therefore a legitimate 

reason for concern if, as is now the case, the judges on the FISC turn out to 

come disproportionately from either Republican or Democratic appointees. 

There are several ways to respond to this concern. We recommend 

allocating the appointment authority to the Circuit Justices. Under this 

approach, each member of the Supreme Court would have the authority to 

select one or two members of the FISC from within the Circuit(s) over 

which she or he has jurisdiction. This approach would have the advantage 

of dividing appointment authority among the Court’s nine members and 

reducing the risks associated with concentrating the appointment power in 

a single person. 
209 

Chapter VII 

Global Communications Technology: Promoting Prosperity, 

Security, and Openness in a Networked World 

A. Introduction 

An important goal of US policy is to promote prosperity, security, 

and openness in the predominant method of modern communication, the 

Internet. This chapter examines how to achieve that goal, consistent with 

other goals of US policy. 

In 2011, the Obama Administration released a major report: 

“International Strategy for Cyberspace: Prosperity, Security, and Openness 

in a Networked World.” In the letter introducing the report, President 

Obama wrote: “This strategy outlines not only a vision for the future of 

cyberspace, but an agenda for realizing it. It provides the context for our 

partners at home and abroad to understand our priorities, and how we can 

come together to preserve the character of cyberspace and reduce the 

threats we face.” The Strategy defined the overall goal: “The United States 

will work internationally to promote an open, interoperable, secure, and 

reliable information and communications infrastructure that supports 

international trade and commerce, strengthens international security, and 

fosters free expression and innovation” (emphasis added). 

We believe that this is an exceedingly important goal, and that it 

bears directly on efforts to engage in sensible risk management. In this 

chapter, we offer a series of recommendations designed to promote that 
210 

goal, and in the process to protect the central values associated with a free 

Internet. 

B. Background: Trade, Internet Freedom, and Other Goals 

The United States has a strong interest in promoting an open, 

interoperable, secure, and reliable information and communication 

structure. We focus our discussion on international trade, economic 

growth, and Internet freedom. 

Throughout this report, we have stressed the need for a riskmanagement approach, balancing the imperatives for intelligence 

collection with the potential downsides. In the areas discussed in this 

chapter, prominent US policy goals run the risk of being undermined by 

the reports about US surveillance. We consider what measures will best 

achieve those goals for our global communications structure. 

1. International Trade and Economic Growth 

The US is committed to international economic competitiveness, to 

improvements in the international trade system, and to achievement of 

economic growth. The rules for international trade are crucial for the 

pervasively international conduct of commerce on the Internet, as well as 

for other sectors involved in international trade. Free trade agreements can 

contribute to economic growth. Unfortunately, foreign concerns about US 

surveillance threaten achievement of these various goals. 

For example, the Transatlantic Trade and Investment Partnership (TTIP) is a large and visible trade negotiation potentially affected by the 
211 

recent surveillance leaks. The T-TIP talks were launched in 2013 as “an 

ambitious, comprehensive, and high-standard trade and investment 

agreement” designed to eliminate all tariffs on trade, improve market 

access on trade in services, and address a wide range of other impediments 

to trade.169 But strong concerns have been expressed about surveillance by 

European officials, as reflected in this statement by the EU Parliament 

Committee on Foreign Affairs: “With the damage to trust in the 

transatlantic relationship caused by NSA massive surveillance and lack of 

data privacy remedies for Europeans, the transatlantic economic 

relationship is at risk.” 170 

European officials have similarly expressed doubt about whether to 

continue the existing Safe Harbor agreement for transfer of personal 

information to the US, under which companies are able to comply with the 

stricter EU privacy laws.171 Although the precise impact on such future 

negotiations is unclear, such statements show the linkage between 

intelligence collection decisions and international trade negotiations. 

The effects of concern with US surveillance on US trade in cloud 

computing and other online activities have drawn particular attention. The 

public cloud computing market for enterprises is growing rapidly. By 

2016, it is estimated to reach $207 billion annually, more than double the 

 

169 White House Fact Sheet: Transatlantic Trade and Investment Partnership (T-TIP), June, 2013, available at 

http://www.ustr.gov/about-us/press-office/fact-sheets/2013/june/wh-ttip. 

170 “Draft Working Document on Foreign Policy Aspect of the Inquiry on Electronic Mass Surveillance of 

EU Citizens,” European Parliament Committee on Foreign Affairs, Nov. 4, 2013, available at 

http://www.statewatch.org/news/2013/nov/ep-nsa-surv-inq-working-document-fa-committee.pdf. 

171 “Bhatt Jaheen, “In Wake of PRISM, German DPAs Threaten to Halt Data Transfers to Non-EU 

Countries,” Bloomberg BNA, July 29, 2013, available at http://www.bna.com/wake-prismgermann1717987502. 
212 

2012 level.172 As a result, cloud computing vendors not only have to retain 

existing customers but also must recruit new customers to maintain market 

share. In the wake of press reports on US surveillance, two studies 

estimated large losses in sales for US cloud computing providers, due to 

concerns overseas about the security of US providers and possible legal 

measures to limit use of US-based cloud providers by other countries. 173

US-based information technology companies and trade associations have 

expressed strong concerns, fearing that Chinese, European, and other 

competitors will use the disclosures to promote their products over 

American exports. 

Negative effects stemming from concern with US surveillance on 

trade and economic competitiveness may, in turn, have adverse effects on 

overall US economic growth. In recent years, the information technology 

sector has been a major source of innovation and growth. Foreign concerns 

about US surveillance can directly reduce the market share of US-based 

technology companies, and can in addition have an indirect effect of 

justifying protectionist measures. Addressing concerns about US 

Government surveillance would increase confidence in the US information 

technology sector, thus contributing to US economic growth. 

 

172 “Garner Predict Cloud Computing Spending to Increase by 100% in 2016, says AppsCare,” 

PRWEb.com, 2012, available at http://prweb.com/releases/2012/7/prweb9711167.htm.

173 Daniel Castro, “How Much Will PRISM Cost the US Cloud Computing Industry,” August, 2013 

(estimating monetary impact on US cloud providers of $21.5 billion by 2016, based on 10% loss in foreign 

market share), available at www2.itif.org/2013-cloud-computing-costs.pdf; Cloud Security Alliance, 

“CSA Survey Results: Government Access to Information”, July 2013, available at 

https://downloads.cloudsecurityalliance.org/initiatives/surveys/nsa_prism/CSA-govt-access-surveyJuly-2013.pdf (losses up to $180 billion by 2016).
213 

2. Internet Freedom 

US Internet freedom policy seeks to preserve and expand the Internet 

as an open, global space for free expression, for organizing and interaction, 

and for commerce. In recent years, the United States has highlighted 

Internet freedom as an important goal of US policy, including by pushing 

successfully in 2012 for the first United Nations resolution that confirms 

that human rights in the Internet realm must be protected with the same 

commitment as in the real world. The US has worked with the Dutch 

Foreign Ministry to establish the Freedom Online Coalition, currently a 

group of 21 governments from five regions committed to coordinating 

diplomatic efforts to advance Internet freedom. This Coalition has sought 

to broaden support for an approach based on universal human rights and 

the inclusive, multi-stakeholder model of Internet governance. 

A central theme of US Internet freedom policy has been protection 

against intrusive surveillance and repression. The US Government has 

consistently spoken out against the arrest and persecution of bloggers and 

online activists in countries such as Azerbaijan, China, Cuba, Egypt, 

Ethiopia, Iran, Russia, Saudi Arabia, Thailand, Venezuela, and Vietnam. 

President Obama and Secretaries of State have publicly criticized restrictive 

Internet legislation designed to force companies to collaborate in 

censorship and pervasive surveillance of their users in order to chill 

expression and facilitate persecution. Since 2008, the Department of State 

and the United States Agency for International Development have invested 

over $100 million in programs to enable human rights activists and 
214 

bloggers to exercise their human rights freely and safely online, including 

by distribution of strong encryption and other anti-censorship tools. 

Revelations about US surveillance have threatened to undermine the 

US Internet freedom agenda. Countries that were previously criticized by 

the United States for excessive surveillance have accused the US of 

hypocrisy. In our view, these allegations lack force. US surveillance is 

subject to oversight by the multiple authorities shown in Appendix C, and 

the First Amendment protections under the US Constitution are an 

effective bulwark against censorship and political repression. Nonetheless, 

the reports about US surveillance have clearly made it more difficult to 

explain the key differences in international fora. As we have emphasized at 

several points in this Report, public trust is exceedingly important. 

3. Internet Governance and Localization Requirements 

The United States has strongly supported an inclusive multistakeholder model of Internet governance in order to maintain and expand 

a globally interoperable, open, and secure Internet architecture to which all 

people have access. This multi-stakeholder approach incorporates input 

from industry, governments, civil society, academic institutions, technical 

experts, and others. This approach has emphasized the primacy of 

interoperable and secure technical standards, selected with the help of 

technical experts. 

A competing model, favored by Russia and a number of other 

countries, would place Internet governance under the auspices of the 

United Nations and the International Telecommunications Union (ITU). 
215 

This model would enhance the influence of governments at the expense of 

other stakeholders in Internet governance decisions, and it could legitimize 

greater state control over Internet content and communications. In 

particular, this model could support greater use of “localization” 

requirements, such as national laws requiring servers to be physically 

located within a country or limits on transferring data across borders. 

The press revelations about US surveillance have emboldened 

supporters of localization requirements for Internet communications. 

Brazil, Indonesia, and Vietnam have proposed requiring e-mails and other 

Internet communications to be stored locally, in the particular country. 

Although generally favoring the multi-stakeholder approach to many 

Internet governance issues, the EU has also shifted in the direction of 

localization requirements. In the second half of 2013, the EU Parliament 

voted in favor of a proposal to limit international data flows; this provision 

would prohibit responding to lawful government requests, including from 

the US courts and government, until release of such records were approved 

by a European data protection authority. 

Public debate has suggested a possible mix of motives supporting 

such localization requirements, including (1) concern about how records 

about their citizens will be treated in the US; (2) support for local cloud 

providers and other information technology companies with the effect of 

reducing the market share of US providers; and (3) use of the localization 

proposals as a way to highlight concerns about US intelligence practices 

and create leverage for possible changes in US policy. Whatever the mix of 
216 

motives, press reports about US surveillance have posed new challenges 

for the longstanding US policy favoring the multi-stakeholder approach to 

Internet governance as well as US opposition to localization requirements. 

C. Technical Measures to Increase Security and User Confidence 

Recommendation 29 

We recommend that, regarding encryption, the US Government 

should: 

(1) fully support and not undermine efforts to create encryption 

standards; 

(2) not in any way subvert, undermine, weaken, or make 

vulnerable generally available commercial software; and 

(3) increase the use of encryption and urge US companies to do so, 

in order to better protect data in transit, at rest, in the cloud, and 

in other storage. 

Encryption is an essential basis for trust on the Internet; without such 

trust, valuable communications would not be possible. For the entire 

system to work, encryption software itself must be trustworthy. Users of 

encryption must be confident, and justifiably confident, that only those 

people they designate can decrypt their data. 

The use of reliable encryption software to safeguard data is critical to 

many sectors and organizations, including financial services, medicine and 

health care, research and development, and other critical infrastructures in 

the United States and around the world. Encryption allows users of 
217 

information technology systems to trust that their data, including their 

financial transactions, will not be altered or stolen. Encryption-related 

software, including pervasive examples such as Secure Sockets Layer (SSL) 

and Public Key Infrastructure (PKI), is essential to online commerce and 

user authentication. It is part of the underpinning of current 

communications networks. Indeed, in light of the massive increase in 

cyber-crime and intellectual property theft on-line, the use of encryption 

should be greatly expanded to protect not only data in transit, but also data 

at rest on networks, in storage, and in the cloud. 

We are aware of recent allegations that the United States Government 

has intentionally introduced “backdoors” into commercially available 

software, enabling decryption of apparently secure software. We are also 

aware that some people have expressed concern that such “backdoors” 

could be discovered and used by criminal cartels and other governments, 

and hence that some commercially available software is not trustworthy 

today. 

Upon review, however, we are unaware of any vulnerability created 

by the US Government in generally available commercial software that 

puts users at risk of criminal hackers or foreign governments decrypting 

their data. Moreover, it appears that in the vast majority of generally used, 

commercially available encryption software, there is no vulnerability, or 

“backdoor,” that makes it possible for the US Government or anyone else 

to achieve unauthorized access.174 

 

174 Any cryptographic algorithm can become exploitable if implemented incorrectly or used improperly. 
218 

Nonetheless, it is important to take strong steps to enhance trust in 

this basic underpinning of information technology. Recommendation 32 is 

designed to describe those steps. The central point is that trust in 

encryption standards, and in the resulting software, must be maintained. 

Although NSA has made clear that it has not and is not now doing the 

activities listed below, the US Government should make it clear that: 

• NSA will not engineer vulnerabilities into the encryption algorithms 

that guard global commerce; 

• The United States will not provide competitive advantage to US firms 

by the provision to those corporations of industrial espionage; 

• NSA will not demand changes in any product by any vendor for the 

purpose of undermining the security or integrity of the product, or to 

ease NSA’s clandestine collection of information by users of the 

product; and 

• NSA will not hold encrypted communication as a way to avoid 

retention limits. 

Although NSA is authorized to retain encrypted data indefinitely for 

cryptanalysis purposes, such as for encryption systems of nation-states or 

terrorist groups, NSA should not store generic commercial encrypted data, 

such as Virtual Private Network (VPN) or SSL data. If NSA is able to 

decrypt data years after it is collected, that data, once decrypted, should be 

sent to an analytic storage facility, where standard retention, minimization, 

and reporting rules would apply. Those rules should include minimization 
219 

of US person data and a prohibition on using data that is beyond 

authorized retention limits. 

Recommendation 30 

We recommend that the National Security Council staff should 

manage an interagency process to review on a regular basis the activities 

of the US Government regarding attacks that exploit a previously 

unknown vulnerability in a computer application or system. These are 

often called “Zero Day” attacks because developers have had zero days 

to address and patch the vulnerability. US policy should generally move 

to ensure that Zero Days are quickly blocked, so that the underlying 

vulnerabilities are patched on US Government and other networks. In 

rare instances, US policy may briefly authorize using a Zero Day for high 

priority intelligence collection, following senior, interagency review 

involving all appropriate departments. 

NSA and other US Government agencies, such as DHS, have 

important missions to assist US corporations in the protection of privately 

owned and operated critical infrastructure information networks. To do 

so, NSA, DHS, and other agencies should identify vulnerabilities in 

software widely employed in critical infrastructure and then work to 

eliminate those vulnerabilities as quickly as possible. That duty to defend, 

however, may sometimes come into conflict with the intelligence collection 

mission, particularly when it comes to what are known as “Zero Days.” 

A Zero Day or “0 Day” exploit is a previously unknown vulnerability 

in software in a computer application or system – the developers or system 
220 

owners have had zero days to address or patch the vulnerability. Because 

the software attack technique has not been used or seen before, it enables a 

cyber attacker to penetrate a system or to achieve other malicious goals. In 

almost all instances, for widely used code, it is in the national interest to 

eliminate software vulnerabilities rather than to use them for US 

intelligence collection. Eliminating the vulnerabilities—“patching” them—

strengthens the security of US Government, critical infrastructure, and 

other computer systems. 

We recommend that, when an urgent and significant national 

security priority can be addressed by the use of a Zero Day, an agency of 

the US Government may be authorized to use temporarily a Zero Day 

instead of immediately fixing the underlying vulnerability. Before 

approving use of the Zero Day rather than patching a vulnerability, there 

should be a senior-level, interagency approval process that employs a risk 

management approach. The NSS should chair the process, with regular 

reviews. All offices and departments with relevant concerns, generally 

including the National Economic Council, State, Commerce, Energy, and 

Homeland Security, should be involved in that process. 

D. Institutional Measures for Cyberspace 

Recommendation 31 

We recommend that the United States should support international 

norms or international agreements for specific measures that will 

increase confidence in the security of online communications. Among 

those measures to be considered are: 
221 

(1) Governments should not use surveillance to steal industry 

secrets to advantage their domestic industry; 

(2) Governments should not use their offensive cyber capabilities 

to change the amounts held in financial accounts or otherwise 

manipulate the financial systems; 

(3) Governments should promote transparency about the number 

and type of law enforcement and other requests made to 

communications providers; 

(4) Absent a specific and compelling reason, governments should 

avoid localization requirements that (a) mandate location of 

servers and other information technology facilities or (b) prevent 

trans-border data flows. 

The US Government should encourage other countries to take 

specific measures to limit the possible negative consequences of their own 

intelligence activities, and increase public trust and user confidence in the 

security of online communications. Norms or agreements might be 

valuable for that purpose. 

We suggest consideration of a series of specific steps. First, 

governments should not use their surveillance capabilities to steal industry 

secrets to advantage their domestic industries. Surveillance may take place 

against both foreign and domestic companies for a variety of reasons, such 

as to promote compliance with anti-money laundering, anti-corruption, 

and other laws, as well as international agreements such as economic 

sanctions against certain countries. The purpose of such surveillance, 
222 

however, should not be to enable a government to favor its domestic 

industry. Bolstering an international norm against this sort of economic 

espionage and competition would support economic growth, protect 

investment and innovation in intellectual property, and reduce costs to 

those innovators of protecting against nation-state cyber attacks. 

Second, governments should abstain from penetrating the systems of 

financial institutions and changing the amounts held in accounts there. 

The policy of avoiding tampering with account balances in financial 

institutions is part of a broader US policy of abstaining from manipulation 

of the financial system. These policies support economic growth by 

allowing all actors to rely on the accuracy of financial statements without 

the need for costly re-verification of account balances. This sort of attack 

could cause damaging uncertainty in financial markets, as well as create a 

risk of escalating counter-attacks against a nation that began such an effort. 

The US Government should affirm this policy as an international norm, 

and incorporate the policy into free trade or other international 

agreements. 

Third, governments should increase transparency about requests in 

other countries from communications providers. Elsewhere in this Report, 

we discuss the importance of such transparency, and recommend 

increasing reporting by both providers and the US Government. 

Transparency about the number and nature of such requests serves as a 

check against abuse of the lawful access process. Greater transparency can 

also encourage increased trust in the security of Internet communications 
223 

and reduce the risk that governments are obtaining widespread access to 

private communication records without the knowledge of users. Putting 

this sort of provision into free trade agreements or other international 

instruments can broaden the positive effects of greater transparency within 

the US. 

Fourth, we support international efforts to limit localization 

requirements except where there is a specific and compelling reason for 

such actions. Global inter-operability has been a fundamental technical 

feature of the Internet; bits flow from one user to the next based on 

technical considerations rather than national boundaries. National efforts 

to tamper with this architecture would require pervasive technical changes 

and be costly in economic terms. A balkanized Internet, sometimes 

referred to as a “splinternet,” would greatly reduce the economic, political, 

cultural, and other benefits of modern communications technologies. The 

US Government should work with allies to reduce harmful efforts to 

impose localization rules onto the Internet. 

Recommendation 32 

We recommend that there be an Assistant Secretary of State to lead 

diplomacy of international information technology issues. 

In the wake of recent disclosures, distortions, and controversies 

involving US Government intelligence collection, there is an increased need 

for vigorous, coordinated, senior-level US diplomacy across a broad range 

of inter-related information technology issues. We believe that the US 

should take the lead in proposing an agreement among multiple nations to 
224 

some set of Internet Norms for Cyberspace, such as a prohibition on 

industrial espionage, a protection of financial services and markets data 

standard, and others. To this end, we recommend a US diplomatic agenda 

to promote confidence-building measures for international cyber security, 

building on the Budapest Convention on Cyber Crime. The promotion of 

the Internet Freedom Agenda, the protection of intellectual property rights 

in cyber space, changes in Internet governance and the implementation of 

the President’s International Cyber Strategy—all will necessitate agile 

diplomatic activity by the United States. 

Currently, there is no single, senior US diplomat and no single 

Department of State Bureau, with lead responsibility across this broad set 

of issues. Just as other international, non-regional functional issues have in 

the past benefited from the creation of an Assistant Secretary of State 

position and of a State Department bureau (International Narcotics, 

Environmental Affairs, Counterterrorism, Human Rights), the interests of 

the United States would be served by the creation of a Department of State 

Bureau of Internet and Cyberspace Affairs, led by an experienced senior 

diplomat confirmed by the Senate as an Assistant Secretary of State. The 

Assistant Secretary would coordinate activity of the regional and functional 

bureaus on these issues and should, with NSS support, coordinate 

interagency activities with other governments. 
225 

Recommendation 33 

We recommend that as part of its diplomatic agenda on 

international information technology issues, the United States should 

advocate for, and explain its rationale for, a model of Internet governance 

that is inclusive of all appropriate stakeholders, not just governments. 

The United States Government should continue and strengthen its 

international advocacy for an Internet governance model that is inclusive 

of all appropriate stakeholders, not just governments. This 

recommendation builds on the administration’s 2011 International Strategy 

for Cyberspace, which outlines multiple US Government goals with respect 

to global communications technologies. It articulates the need to protect 

national security, while also highlighting the importance of economic 

growth, openness, privacy protection, and a secure communications 

infrastructure. Other administration initiatives similarly emphasize the 

importance of multiple policy goals for online communications, such as the 

efforts led by the Department of State on the Internet Freedom agenda and 

the efforts led by the Department of Commerce on the Consumer Privacy 

Bill of Rights. 

As part of the overall discussion of US policy concerning 

communications technology, we believe that the US Government should 

reaffirm that Internet governance must not be limited to governments, but 

should include all appropriate stakeholders. Inclusion of such 

stakeholders—including civil society, industry, and technical experts—is 
226 

important to ensure that the process benefits from a wide range of 

information and to reduce the risk of bias or partiality. 

We are aware that some changes in governance approaches may well 

be desirable to reflect changing communications practices. For instance, 

the time may well be approaching for a hard look at the unique US 

relationship to the organization that governs the domain name system, the 

Internet Corporation for Assigned Names and Numbers (ICANN). The 

current US role is an artifact of the early history of the Internet, and may 

not be well suited to the broader set of stakeholders engaged in Internet 

governance today. The US Government and its allies, however, should 

continue to oppose shifting governance of the Internet to a forum, such as 

the International Telecommunications Union, where nation-states 

dominate the process, often to the exclusion of others. We believe that such 

a governance shift would threaten the prosperity, security, and openness of 

online communications. 

Recommendation 34 

We recommend that the US Government should streamline the 

process for lawful international requests to obtain electronic 

communications through the Mutual Legal Assistance Treaty process. 

US efforts to obtain improved international cooperation on 

information technology issues of importance to us are undermined by the 

inability of the Department of Justice to provide adequate support to other 

nations when they request our assistance in dealing with cyber crime 

originating in the United States. The Justice Department has severely 
227 

under-resourced the so-called Mutual Legal Assistance Treaty (MLAT) 

support process. 

The MLAT process essentially permits one country to seek electronic 

communication and other records held in other countries. For instance, 

non-US countries may seek e-mails held in the United States by web e-mail 

providers. Under the Electronic Communications Privacy Act, providers in 

the US can turn over the content of e-mails only through the required legal 

process, typically requiring probable cause that a crime has been 

committed. 

The MLAT process creates a legal mechanism for non-US countries to 

obtain e-mail records, but the process today is too slow and cumbersome. 

Requests appear to average approximately 10 months to fulfill, with some 

requests taking considerably longer. Non-US governments seeking such 

records can face a frustrating delay in conducting legitimate investigations. 

These delays provide a rationale for new laws that require e-mail and other 

records to be held in the other country, thus contributing to the harmful 

trend of localization laws discussed above. 

We believe that the MLAT process in the US should be streamlined, 

both in order to respond more promptly to legitimate foreign requests and 

to demonstrate the US commitment to a well-functioning Internet that 

meets the goals of the international community. Promising reform 

measures could include: 

1. Increase resources to the office in the Department of Justice that 

handles MLAT requests. The Office of International Affairs (OIA) in the 
228 

Department of Justice has had flat or reduced funding over time, despite 

the large increase in the international electronic communications that are 

the subject of most MLAT requests. 

2. Create an online submission form for MLATs. Today, there is no 

online form for foreign governments that seek to use the MLAT process. 

An online submission process, accompanied by clear information to foreign 

governments about the MLAT requirements, would make it easier for 

distant and diverse foreign governments to understand what is required 

under the US probable cause standard or other laws. 

3. Streamline the number of steps in the process. Under the current 

system, the OIA first examines a request, and then forwards it to the US 

Attorney in the district where the records are held. That US Attorney’s 

office then reviews the application a second time, and handles the request 

subject to the other priorities of that office. The Department of Justice 

should explore whether a single point of contact would be able to expedite 

the MLAT request. 

4. Streamline provision of the records back to the foreign country. 

Under the current system, the provider sends the records to the 

Department of Justice, which then forwards the records to the requesting 

country. It may be possible to streamline this process by permitting the 

provider to send the records directly to the requesting country, with notice 

to the Justice Department of what has been sent. 

5. Promote the use of MLATs globally and demonstrate the US 

Government’s commitment to an effective process. Changing technology 
229 

has sharply increased the importance for non-US governments of gaining 

lawful access to records held in the United States. Web e-mail providers are 

largely headquartered in the United States, and today’s use of secure 

encryption for e-mail means that other governments frequently cannot 

intercept and read the e-mail between the user and the server. It is in the 

interest of the United States to support the continued use of efficient and 

innovative technologies on the Internet, including through leading web email providers. The US Government can promote this interest by 

publicizing and supporting the existence of a well-functioning MLAT 

process, thereby reducing the likelihood of harmful localization measures. 

E. Addressing Future Technological Challenges

This chapter has thus far addressed issues that are currently known 

to implicate US intelligence and communications technology policy. 

Communications technology will continue to change rapidly, however, so 

institutional mechanisms should be in place to address such changes. 

Recommendation 35 

We recommend that for big data and data-mining programs 

directed at communications, the US Government should develop Privacy 

and Civil Liberties Impact Assessments to ensure that such efforts are 

statistically reliable, cost-effective, and protective of privacy and civil 

liberties.

We believe that the Intelligence Community should develop Privacy 

and Civil Liberties Impact Assessments for new programs or substantial 

modifications of existing programs that contain substantial amounts of 
230 

personally identifiable information. Under the E-Government Act of 2002, 

federal agencies are required to prepare Privacy Impact Assessments 

(PIAs) in connection with the procurement of new, or substantially 

modified, information technology systems. These PIAs are designed to 

encourage building privacy considerations early into the procurement 

cycle for such systems. 

Our focus here is on the broader programs that may constitute 

multiple systems. The goal in the program assessment should be broader 

and more policy-based that has usually been the case for PIAs. For 

instance, policy officials should explicitly consider the costs and benefits of 

a program if it unexpectedly becomes public. In some cases, that 

consideration may result in modifications of the program, or perhaps even 

in a decision not to go forward with a program. 175

 

175 We should emphasize here that data- mining and big data have been the subject of previous federally -

funded reports, notably including “Safeguarding Privacy in the Fight Against Terrorism,” from the 

Technology and Privacy Advisory Committee of the Department of Defense (2004), and “Protecting 

Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment,” by the 

National Research Council (2008). These studies, have examined issues of data- mining in considerable 

detail, and we have found them useful and illuminating. Related academic work includes Fred H. Cate, 

“Government Data Mining: the Need for a Legal Framework,” Harvard Civil Rights-Civil Liberties Law 

Review 43, 2008; Peter Swire, “Privacy and Information Sharing in the War Against Terrorism,” 51 

Villanova Law Review 260, 2006. We encourage agencies to study this literature, and adopt risk 

management approaches where feasible. 
231 

Recommendation 36 

We recommend that for future developments in communications 

technology, the US should create program-by-program reviews informed 

by expert technologists, to assess and respond to emerging privacy and 

civil liberties issues, through the Civil Liberties and Privacy Protection 

Board or other agencies.

Technical collection and communications technologies continue to 

evolve rapidly. The US Government should adopt mechanisms that can 

assess and respond to emerging issues. To do this effectively, expert 

technologists, with clearances as needed, must be deeply involved in the 

process.176

We recommended in Chapter VI that the CLPP Board should have an 

Office of Technology Assessment, capable of assessing the privacy and civil 

liberties implications of Intelligence Community programs. Sufficient 

funding for this office should be part of the generally enhanced budget for 

policy and oversight concerning the expensive and technically 

sophisticated programs of the Intelligence Community.177 

 

176 The Federal Trade Commission (FTC) often plays this role for evolving privacy-related issues, such as 

through its recent workshops on the Internet of Things or Big Data. The FTC’s jurisdiction, however, is 

limited to the commercial sector. It has no jurisdiction over technology issues facing government 

agencies, including the Intelligence Community. 177 If an OTA is not created within the PCLOB or a new CLPP Board, then the intelligence community 

should find other mechanisms to institutionalize the effects of new programs on privacy, civil liberties, 

and the other important values implicated by cutting-edge intelligence technologies. These new 

mechanisms must include effective participation by expert technologists beyond those involved in 

development of the program.
232 

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233 

Chapter VIII 

Protecting What We Do Collect 

What intelligence and sensitive information the United States does 

choose to collect or store should be carefully protected from both the 

Insider Threat and the External Hack. Such protection requires new riskmanagement approaches to personnel vetting, a change in philosophy 

about classified networks, and adoption of best commercial practices for 

highly secure private sector networks. 

Our comments in this chapter deal with personnel with security 

clearances and classified networks throughout the US Government and not 

just those in the Intelligence Community. We believe that this broad scope 

is necessary, and we note that previous reviews have been limited to the 

Intelligence Community. In general, we believe that the same standards 

applied to government employees with security clearances and IT 

networks with classified information should apply to private sector 

contractor personnel and networks dealing with Secret and Top Secret 

data. 

A. Personnel Vetting and Security Clearances 

Recommendation 37 

We recommend that the US Government should move toward a 

system in which background investigations relating to the vetting of 

personnel for security clearance are performed solely by US Government 

employees or by a non-profit, private sector corporation. 
234 

Recommendation 38 

We recommend that the vetting of personnel for access to classified 

information should be ongoing, rather than periodic. A standard of 

Personnel Continuous Monitoring should be adopted, incorporating data 

from Insider Threat programs and from commercially available sources, 

to note such things as changes in credit ratings or any arrests or court 

proceedings. 

Recommendation 39 

We recommend that security clearances should be more highly 

differentiated, including the creation of “administrative access” 

clearances that allow for support and information technology personnel 

to have the access they need without granting them unnecessary access to 

substantive policy or intelligence material. 

Recommendation 40 

We recommend that the US Government should institute a 

demonstration project in which personnel with security clearances 

would be given an Access Score, based upon the sensitivity of the 

information to which they have access and the number and sensitivity of 

Special Access Programs and Compartmented Material clearances they 

have. Such an Access Score should be periodically updated. 

In the government as in other enterprises, vast stores of information 

are growing in data bases. Even one unreliable individual with access to 

parts of a data base may be capable of causing incalculable damage by 

compromising sensitive information. Unfortunately, almost every agency 
235 

with sensitive information has experienced a major incident in which a 

disloyal employee caused significant damage by revealing sensitive data 

directly or indirectly to another government or to others who would do us 

harm. All of the individuals involved in these cases have committed 

criminal acts after having been vetted by the current security clearance 

process and, in several well-known cases, after having been polygraphed. 

Although parts of the Intelligence Community have improved their 

personnel vetting systems and they may perform well, the general picture 

throughout the US Government is of an inadequate personnel vetting 

system. 

We believe that the current security clearance personnel vetting 

practices of most federal departments and agencies are expensive and timeconsuming, and that they may not reliably detect the potential for abuse in 

a timely manner. 

The security clearance system should be designed to have an 

extremely low false-positive rate (granting or continuing a clearance when 

one should have been denied). Access to sensitive information should be 

recorded in more detail (e.g. who has access to what and when). The nature 

and degree of vetting procedures should be adjusted periodically and more 

closely tied to the sensitivity of the information to which access is granted. 

1. How the System Works Now 

There are essentially three levels of security clearance (Secret, Top 

Secret, and Top Secret/SCI). For those obtaining any level of security 

clearance, the fundamentals of the personnel vetting system are similar. 
236 

The applicant is asked to provide the names of a score or more of contacts. 

An investigator attempts to meet with those people whose names have 

been provided by the applicant. In many agencies, the investigator is often 

an employee of a private sector company that is paid by the number of 

investigations it completes. 

If the investigators are unable to meet with the contacts in person, 

they may in some cases accept a telephone interview. In many agencies, the 

investigator begins the discussion with all contacts by informing them that 

anything they say about the applicant can be seen by the applicant because 

of the requirements of privacy laws. Not surprisingly, very few contacts 

suggested by the applicant provide derogatory information, especially 

because they know that their remarks may be disclosed to their friend or 

acquaintance. 

Investigators are required to develop interviewees in addition to 

those suggested by the applicant. Often the investigator will attempt to 

inquire of neighbors, those living in the next apartment or house. 

Increasingly, however, neighbors may not know each other well. Online 

”friends” sometimes have a better idea about someone than the people 

living in physical proximity. 

As part of an initial security review, investigators may also access 

some publicly available and commercially available data bases. Such data 

base reviews are used largely to corroborate information supplied by the 

applicant on a lengthy questionnaire. Agencies may require a financial 

disclosure form to be completed, revealing the financial health and 
237 

holdings of an applicant (although often those declarations are not 

verified). Some agencies require a polygraph for Top Secret/SCI 

clearances. Once a clearance has been granted, SECRET- level clearances 

are often updated only once a decade. Top Secret/SCI clearances may be 

updated every five years. Random testing for drug use and random 

polygraphing may occur in between clearance updates. 

In many agencies, the current personnel vetting system does not do 

well in detecting changes in a vetted individual’s status after a security 

clearance has been granted. In most agencies, the security clearance 

program office might not know if an employee between vettings had just 

become involved in a bankruptcy, a Driving Under the Influence arrest, a 

trip to a potentially hostile country, or a conversion to a radical cause such 

as al-Qa’ida. 

Once granted a certain level of clearance because of a need to do part 

of their jobs, employees are often in a position to read other material at that 

classification, regardless of its relevance to their job. However, some 

sensitive projects or sensitive intelligence collection programs 

(“compartments”) have dissemination controls (“bigot lists”). Sometimes 

access to these programs may be granted based solely on job-related needs 

and may not trigger an updated or closer review of personnel background 

material. 

As the system works today, the use of special compartmented access 

programs, limiting access to data, is occasioned often by the means that 

were employed to collect the information, not by the content of the 
238 

information, or the target of the collection, or the damage that could be 

done by unauthorized disclosure of content or target. 

2. How the System Might Be Improved 

A series of broad changes could improve the efficacy of the personnel 

vetting system. 

First, and consistent with practical constraints, agencies and 

department should move in the direction of reducing or terminating the 

use of “for-profit” corporations to conduct personnel investigations. When 

a company is paid upon completion of a case, there is a perverse incentive 

to complete investigations quickly. For those agencies that cannot do 

vetting with their own government employee staff, consideration should be 

given to the creation of a not-for-profit entity modeled on the Federally 

Funded Research and Development Centers (FFRDC), such as RAND and 

MITRE, to conduct background investigations and to improve the 

methodology for doing so. We recommend that a feasibility study be 

launched in the very near future. 

Second, security clearance levels should be further differentiated so 

that administrative and technical staff who do not require access to the 

substance of data on a network are given a restricted level of access and 

security clearance that allows them to do their job, but that does not expose 

them to sensitive material. 

Third, information should be given more restricted handling based 

not only on how it is collected, but also on the damage that could be 

created by its compromise. 
239 

Fourth, departments and agencies should institute a Work-Related 

Access approach to the dissemination of sensitive, classified information. 

While not diminishing the sharing of information between and among 

agencies, the government should seek to restrict distribution of data to 

personnel whose jobs actually require access to the information. Typically, 

analysts working on Africa do not need to read sensitive information about 

Latin America. Yet in today’s system of information-sharing, such 

“interesting but not essential” data is widely distributed to people who do 

not really need it. 

Implementing this sort of Work-Related Access will necessitate a 

greater use of Information Rights Management (IRM) software. Greater use 

of the software means actually widely employing it, not just procuring it. 

It may also require a significant improvement on the state of the art of such 

software, as discussed later in this chapter. 

Fifth, we believe that after being granted their initial clearances, all 

personnel with access to classified information should be included in a 

Personnel Continuous Monitoring Program (PCMP). The PCMP would 

access both internally available and commercially available information, 

such as credit scores, court judgments, traffic violations, and other arrests. 

The PCMP would include the use of anomaly information from Insider 

Threat software. When any of these sources of information raised a level of 

concern, the individual involved would be re-interviewed or subject to 

further review, within existing employee rights and guidelines. 
240 

Sixth, ongoing security clearance vetting of individuals should use a 

risk-management approach and depend upon the sensitivity and quantity 

of the programs and information to which they are given access. 

We recommend a pilot program of Access Scoring and additional 

screening for individuals with high scores. Everyone with a security 

clearance might, for example, be given a regularly updated Access Score, 

which would vary depending upon the number of special access programs 

or compartments they are cleared to be in, the sensitivity of the content of 

those compartments, and the damage that would be done by the 

compromise of that information. 

It would be important that the Access Score be derived not only from 

the accesses granted by the individual’s parent agency, and not only from 

the list of intelligence programs for which the individual was accredited, 

but also from all of the restricted programs to which that individual has 

access from any department, including the Departments of Defense, 

Energy, Homeland Security, and others. 

The greater an individual’s Access Score, the more background 

vetting he or she would be given. Higher scores should require vetting 

more frequent than the standard interval of five (Top Secret) or 10 (Secret) 

years. At a certain Access Score level, personnel should be entered into an 

Additional Monitoring Program. We recognize that such a program could 

be seen by some as an infringement on the privacy of federal employees 

and contractors who choose on a voluntary basis to work with highly 

sensitive information in order to defend our nation. But, employment in 
241 

government jobs with access to special intelligence or special classified 

programs is not a right. Permission to occupy positions of great trust and 

responsibility is already granted with conditions, including degrees of loss 

of privacy. In our view, there should be a sliding scale of such conditions 

depending on the number and sensitivity of the security accesses provided. 

We believe that those with the greatest amount of access to sensitive 

programs and information should be subject to Additional Monitoring, in 

addition to the PCMP discussed earlier. The routine PCMP review would 

draw in data on an ongoing basis from commercially available data 

sources, such as on finances, court proceedings, and driving activity of the 

sort that is now available to credit scoring and auto insurance companies. 

Government-provided information might also be added to the data base, 

such as publicly available information about arrests and data about foreign 

travel now collected by Customs and Border Patrol. 

Those with extremely high Access Scores might be asked to grant 

permission to the government for their review by a more intrusive 

Additional Monitoring Program, including random observation of the 

meta-data related to their personal, home telephone calls, e-mails, use of 

online social media, and web surfing. Auditing and verification of their 

Financial Disclosure Forms might also occur. 

A data analytics program would be used to sift through the 

information provided by the Additional Monitoring Program on an 

ongoing basis to determine if there are correlations that indicate the 

advisability of some additional review. Usually, any one piece of 
242 

information obtained by an Additional Monitoring Program would not be 

determinative of an individual’s suitability for special access. Such a 

review could involve interviewing the individual involved to obtain an 

explanation, or contacting her supervisor, or initiating more intrusive 

vetting. For example, a bankruptcy and a DUI arrest might indicate that the 

individual is under stress that might necessitate a review of his suitability 

for sensitive program access. A failure to report a foreign trip as required 

might trigger a further investigation. Employees whose “outside of work” 

activities show up in a big data analytics scan as possibly being of concern 

might have their use of government computers and data bases placed 

under additional scrutiny. We emphasize that employees with special 

access must not be stripped of their rights or subjected to Kafkaesque 

proceedings. For employees to be willing to participate in a Continuous 

Monitoring Program, they must know that they will have an opportunity 

to explain actions that may be flagged by data review. 

We have noted that in the wake of recent security violations, some 

agencies are considering the more extensive use of polygraphy. There are 

widely varying views about the efficacy of polygraphing, but there can be 

no disputing that it cannot be a continuous process. It is unable to reveal 

events which occur after its use. The Personnel Continuous Monitoring 

Program, with its ongoing ingesting of information from commercial and 

government data bases, augmented by data analytics, is more likely to 

reveal any change in the status of an employee between programmed 

security clearance reviews. 
243 

Finally, the security clearance vetting process should also protect the 

rights of those with access to special programs and information. The 

President should also ensure that security clearance status not be affected 

by use of Whistle-Blower, Inspector General, or Congressional Oversight 

programs (see Appendix D). 

About five million people now have active security clearances 

granted by some arm of the US Government, of which almost 1.5 million 

have Top Secret clearance. Although we do not have the capability to 

determine if those numbers are excessive, they certainly seem high. We 

believe that an interagency committee, representing not just the 

Intelligence Community, should review in detail why so many personnel 

require clearances and examine whether there are ways to reduce the total. 

Such a study may find that many of those with Secret-level clearances 

could do with a more limited form of access. 
244 

Personnel with Security 

Clearances (10/12)178

Confidential/Secret Top Secret 

Government Employees 2,757,333 791,200 

Contractors 582,524 483,263 

Other 167,925 135,506 

Subtotal 3,507,782 1,409,969 

Total 4,917,751 

Once granted a clearance, only a very few have had it revoked for 

cause. Personnel lose clearances mainly because they retire or otherwise 

leave government service or change jobs. Indeed, many who leave 

government service manage to maintain their clearances as part-time 

advisors or by working with contractors. The strikingly small number of 

people who have their clearances revoked may be because the initial 

vetting process in all agencies does such a good job and because very few 

people become security risks after they are initially cleared. But, the 

numbers suggest to us that the re-vetting process, which usually occurs 

every five years, may in some agencies not be as rigorous as it should be. 

Sometimes the initial vetting is assumed to be correct and the only thing 

that is checked are the “new facts” that have occurred in the preceding five 

years. Sometimes the reviews that are supposed to take place every five 

 

178 Office of Director of National Intelligence, 2012 Report on Security Clearance Determinations, p. 3, Table 1, 

(January 2013) available at www.fas.org/sgp/othergov/intel/clear-2012.pdf. 
245 

years are delayed. Many agencies do not have a program to obtain some 

kinds of important information in between security updates. 

Percent of Personnel Whose Security 

Clearances Were Revoked (FY 12) 179

CIA 0.4 

FBI 0.1 

NGA 0.3 

NRO 0.5 

NSA 0.3 

State 0.1 

3. Information Sharing 

Recommendation 41

We recommend that the “need-to-share” or “need-to-know” models 

should be replaced with a Work-Related Access model, which would 

ensure that all personnel whose role requires access to specific 

information have such access, without making the data more generally 

available to cleared personnel who are merely interested. 

 

179 Office of Director of National Intelligence, 2012 Report on Security Clearance Determinations, p. 7, Table 5, 

(January 2013) available at www.fas.org/sgp/othergov/intel/clear-2012.pdf. 
246 

Classified information should be shared only with those who 

genuinely need to know. Beyond the use of compartments, however, the 

vast bulk of classified information is broadly available to people with 

security clearances. Analyses of the failure to prevent the September 11th, 

2001 attacks concluded that information about those individuals involved 

in the plot had not been shared appropriately between and among 

agencies. Although some of that lack of sharing reflected intentional, highlevel decisions, other data was not made broadly available because of a 

system that made it difficult to disseminate some kinds of information 

across agencies. Thus, after the attacks, the mantra “Need to Share” 

replaced the previous concept of “Need to Know.” 

In some contexts, that new approach may have gone too far or been 

too widely misunderstood. The “Need to Share” called for the distribution 

of relevant information to personnel with a job/task defined requirement 

for such information. It did not call for the profligate distribution of 

classified information to anyone with a security clearance and an interest in 

reading the information. 

The problem with the “need-to-share” principle is that it gives rise to 

a multitude of other risks. Consistent with the goal of risk management, the 

appropriate guideline is that information should be shared only with those who 

need to know. There is no good reason to proliferate the number of people 

with whom information is shared if some or many of those people do not 

need or use that information in their work. The principle of “need to share” 
247 

can endanger privacy, heighten the risk of abuse, endanger public trust, 

and increase insider threats. 

To be sure, the matching of one agency’s records against another 

agency’s records—for example, comparing fingerprints collected off of 

bomb fragments in Afghanistan to fingerprints culled at US border 

crossings—is one of the most important information tools we have in 

combating terrorism. Such sharing must continue, but can (and often does) 

take place on a machine-to-machine basis with strict control on which 

human beings can obtain access to the data. 

To its credit, the Intelligence Community has been taking steps to 

restrict the number of people who have access to confidential or classified 

information. We applaud these steps. We recommend that seemingly 

compelling arguments about the importance of information-sharing should 

be qualified by a recognition that information should not be shared with 

those who do not have a genuine need to know. 

B. Network Security180

Recommendation 42

We recommend that the Government networks carrying Secret and 

higher classification information should use the best available cyber 

security hardware, software, and procedural protections against both 

external and internal threats. The National Security Advisor and the 

Director of the Office of Management and Budget should annually 

 

180 Michael Morell affirmatively recused himself from Review Group discussions of network security to 

mitigate the insider threat due to ongoing business interests. 
248 

report to the President on the implementation of this standard. All 

networks carrying classified data, including those in contractor 

corporations, should be subject to a Network Continuous Monitoring 

Program, similar to the EINSTEIN 3 and TUTELAGE programs, to record 

network traffic for real time and subsequent review to detect anomalous 

activity, malicious actions, and data breaches. 

Recommendation 43 

We recommend that the President’s prior directions to improve the 

security of classified networks, Executive Order 13587, should be fully 

implemented as soon as possible. 

Recommendation 44 

We recommend that the National Security Council Principals 

Committee should annually meet to review the state of security of US 

Government networks carrying classified information, programs to 

improve such security, and evolving threats to such networks. An 

interagency “Red Team” should report annually to the Principals with an 

independent, “second opinion” on the state of security of the classified 

information networks. 

Recommendation 45 

We recommend that all US agencies and departments with 

classified information should expand their use of software, hardware, 

and procedures that limit access to documents and data to those 

specifically authorized to have access to them. The US Government 

should fund the development of, procure, and widely use on classified 
249 

networks improved Information Rights Management software to control 

the dissemination of classified data in a way that provides greater 

restrictions on access and use, as well as an audit trail of such use. 

Information technology (IT) has become so central to the functioning 

of the government in general and national security in particular that policy 

officials need to be conversant with the technology. No longer can senior 

officials relegate concerns about IT networks to management or 

administrative staff. Policy officials are ultimately responsible for the IT 

networks of their organizations. They need to understand the systems and 

issues raised by technologists. Toward that end, technologists should be 

part of more policy, decision-making, and oversight processes. Similarly, 

national security policy officials need to take the time to understand in 

detail how the various components of the Intelligence Community work, 

and especially how their collection programs operate. 

The security of classified networks is, in the age of cyber war, one of 

the highest priorities in national security. Nonetheless, the status of 

security improvement and the state of the cyber defenses of our sensitive 

networks have not been a topic for regular review by senior interagency 

policy officials. Department and agency leaders have also had little way to 

verify if the reports of their subordinates concerning the security of their 

classified networks are entirely accurate or complete. We recommend that 

there be an annual review by NSC Principals of the security of classified 

networks and the implementation of programmed upgrades. To inform the 

principals’ discussion, we also recommend that the staffs of OMB and NSC 
250 

lead a process to identify issues and potential deficiencies. We also suggest 

that a “Red Team” be created to provide a second opinion to Principals on 

the security vulnerabilities of all classified networks. 

The security of government networks carrying classified information 

has traditionally been outward looking. It was assumed that anyone who 

had access to the network had been subjected to extensive vetting and was 

therefore trustworthy and reliable. 

There are two flaws in that thinking. First, as has been demonstrated, 

some people who have been given Top Secret/SCI clearances are not 

trustworthy. Second, it may be possible for unauthorized individuals to 

gain access to the classified networks and to assume the identity of an 

authorized user. The government’s classified networks require immediate 

internal hardening. 

Beyond measures designed to control access to data on networks, 

there is a need to increase the security of the classified networks in general. 

Many of the US Government’s networks would benefit from a major 

technological refresh, to use newer and less vulnerable versions of 

operating systems, to adopt newer security software proven in the private 

sector, and to re-architect network designs to employ such improvements 

as Thin Client and air-gapped approaches. 

Despite what some believe is the inherent security of classified 

networks, as the so-called Buckshot Yankee incident demonstrated, it is 

possible for foreign powers to penetrate US networks carrying classified 

information. Just as some foreign powers regularly attempt to penetrate 
251 

private sector networks in the US to steal intellectual property and 

research, others are engaged in frequent attempts to penetrate US networks 

with secret data. 

To improve the security of classified networks, we believe that such 

networks should be given at least as much internal and external security as 

the most secure, unclassified networks in the private sector. Although 

many US corporations have inadequate network security, some in financial 

services have achieved a high level of assurance through the use of a risk 

management approach. State-of-the-art cyber security products used in 

private sector companies are not as often used on classified US 

Government networks as we would have believed likely. 

We believe that inadequacy can be explained by two factors: 1) 

classified network administrators have traditionally focused on perimeter 

network defenses and 2) the procurement process in the government is too 

lengthy and too focused on large-scale system integrator contracts that do 

not easily allow for the agile adoption of new security products that keep 

up with the ever-changing threat. In our view, every department and 

agency’s IT security budget and procurement processes ought to include 

funding set aside and procedures for the rapid acquisition and installation 

of newly developed security products related to recently appearing threats.

These systems should be reviewed and procurement measures made 

through a decision making process that considers cost-benefit analysis, 

cost-effectiveness, and risk management. 
252 

1. Executive Order 13578

In recognition of the need to improve security on government 

networks with classified data, President Obama issued Executive Order 

13587 to improve the security of classified networks against the Insider 

Threat. We have found that the implementation of that directive has been 

at best uneven and far too slow. Every day that it remains unimplemented, 

sensitive data, and therefore potentially lives, are at risk. Interagency 

implementation monitoring was not performed at a sufficiently high level 

in OMB or the NSS. The Administration did not direct the re-programming 

of adequate funds. Officials who were tardy in compliance were not held 

accountable. No central staff was created to enforce implementation or 

share best practices and lessons learned. 

The implementation of Executive Order 13587 is in marked contrast 

to the enforcement of compliance with a somewhat similar effort, the 

conversion of government networks for Y2K. The Y2K software upgrades 

were carried out under the aegis of Executive Order 13073, issued only 22 

months before the implementation deadline. That order established an 

Interagency Council co-chaired by an Assistant to the President and by the 

Director of OMB. It required quarterly reports to the President. 

We believe that the implementation of Executive Order 13578 should 

be greatly accelerated, that deadlines should be moved up and enforced, 

and the adequate funding should be made available within agency budget 

ceilings and a Deputy Assistant to the President might be directed to 
253 

enforce implementation. The interagency process might be co-led by the 

Deputy Director of OMB. 

In addition to the Insider Threat measures discussed above, we 

believe that government classified networks could have their overall 

security improved by, among other steps, priority implementation of the 

following: 

• Network Continuous Monitoring techniques on all classified 

networks similar to the EINSTEIN-TUTELAGE Program now being 

implemented on US Government unclassified networks and the 

systems of certain private sector, critical infrastructure companies. 

• A Security Operations Center (SOC) with real-time visibility on all 

classified US Government networks. There are now many SOCs, but 

no one place where fusion and total visibility takes place; and 

• More severe limits on the movement of data from unclassified to 

classified networks. Although such data being uploaded is scanned 

today, the inspection is unlikely to detect a Zero Day threat (i.e. 

malicious software that has not been seen before). 

2. Physical and Logical Separation 

We believe that the most cost-effective efforts to enhance the security 

of IT networks carrying classified data are likely to be those that create 

greater physical and logical separation of data, through network 

segmentation, encryption, identity access management, access control to 
254 

data, limitation of data storage on clients, and “air-gapping.” Among the 

measures we suggest be more carefully considered are : 

• The creation of Project Enclaves on networks, with firewalls, access 

control lists, and multi-factor (including biometric) authentication 

required for entry. 

• Project-based encryption for data at rest and in use. Today, most 

data at rest on classified networks is not encrypted (although the 

networks and the data in transit are). Encrypting data whether at rest 

or in transit and linking that encryption with Identity Access 

Management (IAM) or IRM software would prevent reading by those 

not authorized even if they do access the data. 

• IRM. To determine and limit who has access to data in a Project 

Based Encryption file, agencies should be encouraged to consider the 

use of IRM software that specifies what groups or individuals may 

read, or forward, or edit, or copy, or print, or download a document. 

IRM is known by other terms, such as Digital Rights Management, in 

some agencies. The IRM software should be linked to a multi-factor 

Identity Access Management system so that administrative and 

technical staff, such as System Administrators, and others cannot 

access the content of the data. 

• Separation of Networks. Networks can be physically separated to 

varying degrees, from using separate colors on a fiber to using 

different fibers, to using different physical paths. In true “airgapping,” a network shares no physical devices whatsoever with 
255 

other networks. In logical separation, networks may be maintained 

separate by firewalls, access controls, identity access management 

systems, and encryption. We believe that every relevant agency 

should conduct a review using cost-benefit analysis, and riskmanagement principles to determine if it would make sense to 

achieve greater security by further physical and logical separation of 

networks carrying data of highly sensitive programs. 

We have found that there are few choices and perhaps insufficiently 

robust products today among Identity Rights Management software and 

among Insider Threat Anomaly Detection software. We believe that the 

government should fast track the development of Next-Generation IRM 

and Next-Generation Insider Threat software, waiving the normal research 

and procurement rules and timetables. The development of NextGen 

software in these areas should not, however, be an excuse for failure to 

deploy the software that is now available. 

Fortunately, the government itself may have developed the basis for 

a more robust IRM software. The National Institute for Standards and 

Technology (NIST) of the Department of Commerce has created an Open 

Source platform for Next-Generation IRM software. Private sector 

developers should be granted access to that platform quickly, as well as 

encouraged to develop their own systems. 

The NIST open source software, like other software now being used 

in some agencies, prevents the downloading of sensitive data from central 

servers. Analysts may access the data and employ it, but may not transfer 
256 

it. With the NIST software, the user sees an image of the data, but is unable 

to download it to a client and then to a thumb drive, CD, or other media. In 

general, we believe that sensitive data should reside only on servers and 

not on clients. 

IRM systems and “data-on-server only” policies allow for auditing of 

data access, but they also generally presume the use of a data-tagging 

system when data is initially ingested into a network or system. We believe 

that additional work needs to be done to make that phase of data control 

less onerous, complex, and time-consuming. Government-sponsored 

development or procurement would promote the more rapid solution of 

those problems with data tagging. 

NSA, among others, is returning to the Thin Client architecture, 

which many agencies abandoned 15-20 years ago in favor of cheaper, 

Commercial Off The Shelf (COTS) models. In the Thin Client architecture, 

the user may employ any screen on the network after properly 

authenticating. The screens, however, are “dumb terminals” with little 

software loaded on the devices. All applications and data are stored on 

servers, which are easier to secure and monitor than are large numbers of 

distributed clients. The use of a Thin Client architecture is, we believe, a 

more secure approach for classified networks and should be more widely 

used. 
257 

C. Cost-Benefit Analysis and Risk Management 

Recommendation 46 

We recommend the use of cost-benefit analysis and risk-management 

approaches, both prospective and retrospective, to orient judgments 

about personnel security and network security measures. 

In our statement of principles, we have emphasized that in many 

domains, public officials rely on a careful analysis of both costs and 

benefits. In our view, both prospective and retrospective analysis have 

important roles to play in the domain under discussion, though they also 

present distinctive challenges, above all because of limits in available 

knowledge and challenges in quantifying certain variables. In particular, 

personnel security and network security measures should be subject to 

careful analysis of both benefits and costs (to the extent feasible). 

Monetary costs certainly matter; public and private resources are 

limited. When new security procedures are put in place—for example, to 

reduce insider threats—the cost may well be ascertainable. It may be 

possible to identify a range, with upper and lower bounds. But the benefits 

of security procedures are likely to be more challenging to specify. It 

remains difficult, even today, to quantify the damage done by the recent 

leaks of NSA material. In principle, the question is the magnitude of the 

harm that is averted by new security procedures. Because those procedures 

may discourage insider threats from materializing, it will not be feasible to 

identify some averted harms. 
258 

Even if so, some analysis should be possible. For example, officials 

should be able to see to what extent new security procedures are helpful in 

detecting behavior with warning signs. Retrospective analysis can improve 

judgments by showing what is working and what is not. Risk-management 

approaches generally suggest hedging strategies on investment in 

preventative measures when detailed actuarial data are not available. That 

approach, along with breakeven analysis,181 may be necessary when 

considering risk contingencies that have never come to fruition in the past.

 

181 See OMB Circular A-4. 
259 

Conclusion

In this Report, we have explored both continuity and change. The 

continuity involves enduring values, which we have traced to the founding 

of the American republic. When the Constitution was ratified, We the 

People—in whom sovereignty resides—made commitments, at once, to the 

protection of the common defense, securing the blessings of liberty, and 

ensuring that people are “secure in their persons, houses, papers, and 

effects.” In the American tradition, liberty and security need not be in 

conflict. They can be mutually supportive. This understanding lies at the 

foundation of our culture and our rights, and it is shared by many of our 

close friends and allies. 

At the same time, we live in a period of astonishingly rapid change. 

We face new threats to the common defense, including those that come 

from terrorism. For those who seek to do us harm, new technologies 

provide unprecedented opportunities for coordination across space and 

time, and also for identifying potential vulnerabilities. For the United 

States, our allies, and others whom we seek to protect, those very 

technologies provide opportunities to identify threats and to eliminate 

them. And in light of the pace of change, there is no question that today’s 

technologies, extraordinary though they are, will seem hopelessly primitive 

in the relatively near future—and that both the threats and the 

opportunities will expand accordingly. We have emphasized the 

importance of careful assessment of the real-world consequences of our 
260 

choices, and of a willingness to reassess those choices as new information is 

obtained. 

Our goal in this Report has been to promote enduring values in a 

period of rapid change, and to assert that those values are essentially 

timeless. We have identified a series of reforms that are designed to 

safeguard the privacy and dignity of American citizens, and to promote 

public trust, while also allowing the Intelligence Community to do what 

must be done to respond to genuine threats. 

No nation treats citizens of other nations the same way that it treats 

its own people, but we have emphasized that numerous steps can and 

should be taken to protect the privacy and dignity of citizens of other 

nations, including those who are outside the United States. We have also 

emphasized that surveillance should never be undertaken to promote 

illegitimate goals, such as the theft of trade secrets or the suppression of 

freedom of speech or religion. 

We have also called for institutional reforms designed to ensure that 

NSA remains a foreign intelligence collection agency and that other 

institutions, both independent and inside the Executive Branch, work to 

protect privacy and civil liberty. We have stressed that it is exceedingly 

important to maintain a secure and open Internet, and several of our 

recommendations are designed to promote that goal. Protection of what we 

collect is indispensable to safeguarding national security, privacy, and 

public trust; the recommendations made here would significantly 

strengthen existing protections. 
261 

We have emphasized throughout that the central task is one of 

managing a wide assortment of risks. We are 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. 
262 

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263 

Appendix A: The Legal Standards for Government Access to 

Communications

There is considerable complexity in the legal standards for 

government access to communications-related information. This Appendix 

seeks to make the legal requirements and possible reforms easier to 

understand. This is achieved by setting forth an outline consisting of four 

components. This short appendix can only set forth certain key elements of 

the law and is not aimed at representing a comprehensive picture of all 

relevant statutory provisions and jurisprudence. 

The first component sets forth the burden of proof that the 

government must meet in order to obtain the information. From less strict 

to stricter, the burden of proof used in this area of law includes: (1) 

relevant; (2) reasonable grounds to believe, or reasonable and articulable 

suspicion; and (3) probable cause. 

The second component sets forth the scope of the activity to which 

the burden of proof applies, such as a criminal investigation or foreign 

intelligence investigation. Both a law enforcement and FISA warrant 

require “probable cause.” The probable cause is of a different thing, 

however. For a criminal warrant there must be probable cause that a crime 

has been, is, or will be committed. For a FISA warrant, there must be 

probable cause that the target is an agent of a foreign power. 

The third component sets forth the level of authorization required to 

undertake the activity. The decision is sometimes made by the analyst, or 
264 

subject to approval within the executive branch, or subject to approval by a 

judge. 

The fourth component is the nature of the information that can be 

obtained pursuant to the relevant legal authority. 

If policymakers wish to raise the standards for government access, 

one or more of the first three components can be amended. For instance, a 

standard could be raised to probable cause, the scope of investigation 

could be narrowed, or higher-level approval could be required. Similarly, 

easing the standards could occur along one or more of these three 

dimensions. For instance, relevance might be required rather than a stricter 

standard, or the scope of the investigation could broaden, or no sign-off by 

higher authority would be needed. 

This appendix sets forth the standards for law enforcement’s 

undertaking of criminal investigations and the intelligence community’s 

foreign intelligence investigations. The standards presented below are in 

some instances simplified, so the applicable statutes and case law should 

be consulted for further details. 

LAW ENFORCEMENT PURPOSES 

Traditional Warrant: (1) Probable cause. (2) Crime has been, is, or will be 

committed. (3) Order from a judge or, in the language of the Fourth 

Amendment, a “neutral magistrate.” (4) Can obtain documents, records, or 

things. 
265 

Wiretap (18 U.S.C. § 2518): (1) Probable cause, plus additional 

requirements such as other investigatory methods are unlikely to succeed. 

(2) Crime has been, is, or will be committed, only for crimes listed in 18 

U.S.C. § 2516. (3) Order issued by judge. (4) Conversations that are 

evidence of criminal activity. 

Pen/Trap (18 U.S.C. § 3122): (1) Relevant. (2) Ongoing criminal 

investigation. (3) Order issued by Judge. (4) Communications meta-data 

(dialing, routing, addressing, and signaling information but not content). 

Required Disclosure of Customer Communications Records (18 U.S.C. § 

2703(d)): (1) Specific and articulable facts that there are reasonable grounds 

to believe relevant and material. (2) Ongoing criminal investigation. (3) 

Order issued by Judge. (4) Various classes of records, including opened emails if there is notice to the subscriber and non-content records with no 

notice requirement. 

INTELLIGENCE PURPOSES 

Title I FISA (50 U.S.C. § 1801): (1) Probable cause. (2) Target is an agent of 

a foreign power or a foreign power and each of the facilities or places is 

used or about to be used by a foreign power or an agent of a foreign power. 

(3) Order issued by FISC pursuant to AG certification. (4) Contents of 

communications. 

Pen/Trap FISA (50 U.S.C. § 1842): (1) Relevant to an ongoing investigation. 

(2) To protect against international terrorism or clandestine intelligence 
266 

activities, or to obtain foreign intelligence information not concerning a US 

person. (3) Order issued by FISC pursuant to AG certification. (4) 

Communications meta-data (but not content). 

FISA Section 702 (50 U.S.C. § 1881): (1) Reasonable belief person is non-US 

Person located outside the US and subject to one of the FISC-approved 

certifications. (2) To acquire foreign intelligence. (3) Targeting requested 

by analyst subject to review by adjudicators. (4) Content of 

communications. 

Section 215 (50 U.S.C. § 1861): (1) Reasonable grounds to believe that the 

tangible things sought are relevant. (2) To obtain foreign intelligence 

information about a non-US person or to protect against international 

terrorism or clandestine intelligence activities relevant to an authorized 

investigation. (3) Order issued by FISC pursuant to AG certification. (4) 

Documents, records, or other tangible things. 

National Security Letters (50 U.S.C. § 436): (1) Relevant or pursuant to an 

open national security investigation. (2) For counterintelligence and 

counterterrorism, including cyber investigations. (3) FBI Special Agent in 

Charge or more senior FBI official. (4) Communications meta-data. Note: 

Other NSL statutes exists for other categories of records. 

Executive Order 12333: (1) No requirement. (2) For foreign intelligence or 

counterintelligence purposes. (3) Decided by analyst with supervisory 

approval pursuant to internal guidelines. (4) Foreign intelligence 

information. 
267 

DISCLAIMER: This overview is a quick reference guide and is not intended as 

a substitute for the minimization procedures and their implementation.

Appendix B: 

Overview of NSA Privacy Protections Under FAA 702

 

TARGETING

• Targeting must be for a valid 

foreign intelligence purpose 

in response to National 

Intelligence Priorities.

• Targeting must be under a 

Foreign Intelligence Surveillance 

Court (FISC)-approved FAA 

702 Certification and limited to 

non–US Persons located overseas.

• All targeting is governed 

by FISC-approved 

targeting procedures.

• Targeting of US Persons 

or any persons located 

inside the United States is 

strictly prohibited.

• Reverse-targeting of US 

Persons is prohibited.

 

COLLECTION 

• Specific communications 

identifiers (for example, phone 

numbers or e-mail addresses) are 

used to limit collection only to 

communications to, from, or about 

a valid foreign intelligence target.

• Intentional collection 

of wholly domestic 

communications (that is, all 

communicants are in the 

US) is prohibited.

 

ANALYSIS/

EXPLORATION

• Queries into collected data 

must be designed to return valid 

foreign intelligence.

• Overly broad queries 

are prohibited.

• Upon additional 

authorization and 

oversight, queries using 

US Person identifiers 

are permitted for foreign 

intelligence purposes.

• Any wholly domestic 

communications (that is, 

all communicants are in 

the United States) must be 

destroyed upon recognition.

 

DISSEMINATION

• Disseminations to external entities, 

including Executive Branch 

agencies and select foreign 

partners, are made for valid foreign 

intelligence purposes.

• US Person information 

is protected in reporting 

unless necessary to 

understand and assess 

the foreign intelligence, 

evidence of a crime, or other 

exception applies.

 

RETENTION

• Raw data is destroyed after two 

years or five years (depending on 

the collection source) after the 

expiration of the certification under 

which it was acquired.
268 

Appendix B: 

Overview of NSA Privacy Protections Under EO 12333

DISCLAIMER: This overview is a quick reference guide and is not intended as 

a substitute for the minimization procedures and their implementation.

TARGETING

• Targeting must be for a valid 

foreign intelligence purpose 

in response to National 

Intelligence Priorities.

• All targeting is governed by 

DOD regulations and Attorney 

General–approved procedures.

• Targeting of US Persons 

is NOT permitted except 

in limited circumstances 

that require additional 

authorization or consent.

COLLECTION 

• Selection terms/identifiers 

must be crafted to limit 

collection—to the extent 

possible—to communications 

responsive to a valid foreign 

intelligence purpose.

ANALYSIS/

EXPLORSATION

• Queries into collected data 

must be designed to return valid 

foreign intelligence.

• Overly broad queries 

are prohibited.

• Queries for US Person 

information are prohibited 

except in limited 

circumstances that require 

additional authorization 

or consent.

• Any wholly domestic 

communication (that is, all 

communicants are in the 

United States) must be 

destroyed upon recognition.

DISSEMINATION

• Disseminations to external entities, 

including Executive Branch 

agencies and select foreign 

partners, are made for valid foreign 

intelligence purposes.

• US Person information 

is protected in reporting 

unless necessary to 

understand and assess 

the foreign intelligence, 

evidence of a crime, or other 

exception applies.

RETENTION

• Raw data is destroyed after five 

years except when necessary to 

maintain technical databases 

for cryptanalytic or traffic 

analysis purposes.
269 

Appendix C: 

US Intelligence: Multiple Layers of Rules and Oversight

aDetermines whether and how to authorize/fund intelligence 

activities and conducts oversight via intelligence and 

other committees.

bRules on matters under Foreign Intelligence Surveillance Act.

c

Provides privacy/civil liberties advice and oversight for USG 

efforts to protect the nation from terrorism.

dReviews reports of potential violations of law and executive 

order on behalf of President.

eIncludes DOJ’s National Security Division and DOJ’s Privacy 

and Civil Liberties Office.

f

Includes ODNI’s Civil Liberties and Privacy Office, ODNI/OGC, 

and the IC Inspector General.

gAt the department level, these can include departmental 

counterparts to the agency-level organizations, and may also 

include other offices (for example, DOD’s Assistant to the 

Secretary of Defense for Intelligence oversight).

hAt the agency level, these can include the following 

organizations: Offices of General Counsel, Offices of Inspector 

General, Civil Liberties and Privacy Offices, Intelligence 

Oversight Offices, Compliance Offices (for example, NSA’s 

new Civil Liberties and Privacy Officer position, and NSA’s 

Office of the Director of Compliance). 

LEGISLATIVE BRANCH

• Congressa

LEGISLATIVE BRANCH

• Constitution

• Statutes

EXECUTIVE BRANCH

• Privacy and Civil Liberties 

Oversight Boardc

• President’s Intelligence 

Oversight Boardd

• Department of Justicee

• ODNI-level officialsf

• Department-level officialsg

• Agency-level officialsh

EXECUTIVE BRANCH

• Executive Orders and 

Presidential Directives 

• Attorney General 

Guidelines 

• IC Directives 

• Agency regulations, 

instructions, and policies 

• Agency training 

and guidance

JUDICIAL BRANCH

• Foreign Intelligenceb

JUDICIAL BRANCH

• Court orders and 

standard minimization 

procedures

Guidance to the IC

Analyst

Oversight and Enforcement

The graphic below illustrates the role played by each of the three branches of 

the US Government in governance of a query run by an intelligence analyst. 

On the left are the laws and guidelines that apply to actions of the analyst, 

setting forth the parameters within which the search may be conducted. The 

right side of the graphic highlights the review, oversight, and auditing functions 

of each of the three branches, once the search has been conducted.
270 

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271 

EMPLOYEE PROTECTIONS FOR DISCLOSURES:

• National Security Act of 1947, CIA Act of 1949, Inspector General Act of 1978

• Presidential Policy Directive No. 19

• Agencies’ Internal Policies

Appendix D: 

Avenues for Whistle-blowers in the Intelligence Community

Employee/Whistle-blower

Directly to Inspectors General 

or via Offices of General 

Counsel to Inspectors General

Employee’s Management Chain

Inspectors General or 

Congressional Affairs Offices

HPSCI or SSCI 

(classified information)

HPSCI/SSCI/Employee’s 

Congressman/etc. 

(unclassified information)
272 

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273 

Appendix E: US Government Role in Current Encryption 

Standards 

NSA provided the Review Group the following information, 

outlining the reliability of certain encryption systems. Our 

recommendation 31 would give the force of law to prohibitions on 

undercutting these and other standards. 

Most of the standards described below are approved by NIST for 

protecting unclassified US Government information and by NSA for 

protecting classified US Government information. AES, SHA-2, EC-DSA, 

and EC-DH make up the core of “Suite B,” NSA’s mandated set of public 

standard algorithms, approved in 2006, for protecting classified 

information.182 Each algorithm discussed below is currently in use in 

National Security Systems, although NSA is pursuing the transition from 

SHA-1 to SHA-2. For further information on all but SHA-1 see 

https://www.cnss.gov/policies.html and references contained there. 

In general, NSA applies the deep cryptanalytic tradecraft and 

mathematical expertise developed over decades of making and breaking 

codes, to ensure that cryptography standardized by the US Government is 

strong enough to protect its own sensitive communications. 

 

182 This paper addresses the strength of standard cryptographic algorithms. Any cryptographic algorithm 

can become exploitable if implemented incorrectly or used improperly. NSA works with NIST to ensure 

that NIST standards incorporate guidance on correct implementation and usage. NSA will exploit 

vulnerable implementations and uses to support the lawful conduct of signals intelligence. 
274 

AES – The Advanced Encryption Standard – FIPS 197 

NSA did not contribute to nor modify the design of the Advanced 

Encryption Standard (AES). It was designed by two European 

cryptographers: Joan Daemen and Vincent Rijmen. It was published and 

submitted in 1998 for NIST’s AES competition and selected in 2001 as the 

Advanced Encryption Standard. NSA extensively examined the algorithms 

in the competition and provided technical guidance to NIST during the 

competition to make sure that NIST’s final selection was a secure 

algorithm. NIST made the final algorithm choice under its own authority, 

independent of NSA. Both NSA and the academic cryptography 

community have thoroughly analyzed the AES. 

RSA – The Rivest, Shamir, Adelman Public Key Algorithm – FIPS 186, 

NIST SP 800-56B

NSA did not contribute to, nor modify, the design of RSA, but it did 

provide input on RSA usage in standards. It was designed in 1977 by three 

cryptographers working at MIT: Americans Ron Rivest, and Leonard 

Adelman, and Israeli Adi Shamir. The algorithm was independently 

designed earlier by Cliff Cocks of UK GCHQ in 1973 but was not 

published, and was only declassified in 1997. Both NSA and the academic 

cryptography community have thoroughly analyzed the RSA algorithm 

both as a digital signature (FIPS-186) and as an encryption algorithm for 

keys (SP 800-56B). 
275 

Diffie-Hellman/Elliptic Curve Diffie-Hellman – The Diffie-Hellman Key 

Exchange Algorithm – NIST SP 800-56A

NSA did not contribute to, nor modify, the design of Diffie-Hellman. The 

Diffie-Hellman Key Exchange Algorithm was designed by American 

cryptographer Whitfield Diffie and Martin Hellman at Stanford University 

in 1976. It was invented by Malcolm Williamson of GCHQ a few years 

earlier, but never published. The elliptic curve variant of the DiffieHellman key exchange was invented independently by American 

cryptographers Victor Miller and Neal Koblitz in 1985. NSA ensured that a 

class of potentially weak elliptic curve parameters was not included in the 

NIST standard. Both NSA and the academic cryptography community 

have thoroughly analyzed both the Diffie-Hellman Key Exchange 

algorithm and its elliptic curve variant (both found in NIST SP 800-56A). 

DSA/ECDSA—The Digital Signature Algorithm/Elliptic Curve DSA —

FIPS 186

NSA designed the algorithm known as DSA as the original signature 

algorithm in FIPS 186 initially in 1991-1993, then contributed advice on 

later versions of the standard. NSA also designed a variant of DSA that 

uses the mathematics of elliptic curves and is known as the “Elliptic Curve 

DSA” or ECDSA. Both NSA and the academic cryptography community 

have thoroughly analyzed the DSA (FIPS 186). 

SHA-1 – The Secure Hash Algorithm Variant 1 – FIPS 180-1 

NSA designed the SHA-1 algorithm as a correction to the SHA-0 algorithm, 

a longer (160-bit) variant of the MD5 algorithm designed by Ron Rivest. 
276 

SHA-0 was an NSA design standardized in 1993. In 1994, NSA acted 

quickly to replace SHA-0 with SHA-1 as a NIST standard when NSA 

cryptanalysts discovered a problem with the SHA-0 design that reduced its 

security. Both NSA and the academic cryptography community have 

thoroughly analyzed the SHA-1 (FIPS 180). For many years NIST and NSA 

have recommended that people stop using SHA-1 and start using the SHA2 hash algorithms. 

SHA-2 – The Secure Hash Algorithm Variant 2 – FIPS 180-2 

NSA designed the four different-length hash algorithms contained in FIPS180-2 and collectively known as SHA-2. Because of their longer hash 

lengths (224, 256, 384, and 512 bits), the SHA-2 hash lengths provide 

greater security than SHA-1. SHA-2 also blocks some algorithm 

weaknesses in the SHA-1 design. These algorithms were standardized in 

2002. Both NSA and the academic cryptography community have 

thoroughly analyzed the SHA-2 hash algorithms (FIPS 180). 
277 

Appendix F: Review Group Briefings and Meetings 

GOVERNMENT 

Executive Branch 

Assistant to the President for Homeland Security & Counterterrorism 

Bureau of Alcohol, Tobacco, Firearms and Explosives 

Central Intelligence Agency 

Defense Intelligence Agency 

Department of Commerce 

Department of Defense 

Department of Homeland Security 

Department of Justice 

Department of State 

Drug Enforcement Agency 

Federal Bureau of Investigations 

National Archives and Records Administration 

National Counterterrorism Center 

National Institute for Standards and Technology 

National Reconnaissance Office 
278 

National Security Advisor 

National Security Agency 

Office of the Director of National Intelligence 

President’s Intelligence Advisory Board 

Privacy and Civil Liberties Oversight Board 

Program Manager for the Information Sharing Environment (PM-ISE) 

Special Assistant to the President for Cyber Security 

Treasury Department 

Legislative Branch 

House Judiciary Committee 

House Permanent Select Committee on Intelligence 

Senate Judiciary Committee 

Senate Select Committee on Intelligence 

Judicial Branch 

Judge John D. Bates, United States District Court Judge (former Foreign 

Intelligence Surveillance Court Judge) 
279 

PRIVATE ENTITIES 

Organizations 

American Civil Liberties Union 

Apple 

AT&T 

Brennan Center for Justice 

CATO Institute 

Center for Democracy & Technology 

Center for National Security Studies 

Electronic Frontier Foundation 

Electronic Privacy Information Center 

Enterprise Risk Management/Root Cause Analysis 

Facebook 

Google 

Human Rights Watch 

IBM Center for Excellence 

Information Technology and Innovation Foundation 

Information Technology Industry Council 

Microsoft 
280 

New America Foundation 

Open Technology Institute 

Palantir 

Rackspace 

Reporters Committee for Freedom of the Press 

Software & Information Industry Association 

the TOR Project 

Verizon 

Yahoo 

Individuals 

Baker, Stewart; Steptoe & Johnson 

Berman, Jerry 

Blaze, Matt; University of Pennsylvania 

Bowden, Caspar 

Cate, Fred; Indiana University 

Donohue, Laura; Georgetown Law School 

Farber, David; Carnegie Mellon University 

Felten, Ed; Princeton University 

Klein, Hans; Georgia Institute of Technology 
281 

Kris, David; Intellectual Ventures (Former DoJ NSD Chief) 

Malinowski, Tom; Human Rights Watch former director 

Soltani, Ashkan 

Wittes, Ben; Brookings Institution 

Wolf, Christopher; Hogan, Lovells 

FOREIGN ORGANIZATIONS 

(LIBE) European Parliament Committee on Civil Liberties, Justice, and 

Home Affairs 

European Union Privacy & Civil Liberties delegation 
282 

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283 

Appendix G: Glossary 

A (AES) Advanced Encryption Standard An encryption algorithm for 

securing sensitive but unclassified material by US Government agencies 

and, as a consequence, may eventually become the de facto encryption 

standard for commercial transactions in the private sector. 

Source: 

http://searchsecurity.techtarget.com/definition.Advanced-EncryptionStandard

AG Attorney General 

B Backdoor A means of access to a computer program that bypasses 

security mechanisms. A programmer may sometimes install a back door 

so that the program can be accessed for troubleshooting or other 

purposes. 

Source: 

http://searchsecurity.techtarget.com/definition/back-door 

Big Data Analytics The process of examining large amounts of data of a 

variety of types (big data) to uncover hidden patterns, unknown 
284 

correlations, and other useful information. 

Source: 

http://searchbusinessanalytics.techtarget.com/definition/big-dataanalytics 

Bulk Data An electronic collection of data composed of information 

from multiple records, whose primary relationship to each other is their 

shared origin from a single or multiple databases. 

Source: 

http://www.maine.gov/legis/opla/RTKINFORMEcomments.pdf 

C Church Committee An 11-member investigating body of the Senate (a 

Senate Select Committee) that studied governmental operations with 

respect to Intelligence Activities. Itpublished 14 reports that contain a 

wealth of information on the formation, operation, and abuses of US 

intelligence agencies. The reports were published in 1975 and 1976, after 

which recommendations for reform were debated in Congress and in 

some cases enacted. 

Source: 

http://www.aarclibrary.org/publib/contents/church/contents_church

_reports.htm 
285 

CIA Central Intelligence Agency 

Cloud Computing A model for enabling ubiquitous, convenient, ondemand network access to a shared pool of configurable computing 

resources (e.g., networks, servers, storage, applications, and services) 

that can be rapidly provisioned and released with minimal management 

effort or service provider interaction. 

Source: 

http://csrc.nist.gov/publications/nistpubs/800-145/SP800-145.pdf 

CLPP Board Civil Liberties and Privacy Protection Board 

(CMP) Continuous Monitoring Program Maintaining ongoing 

awareness of information security, vulnerabilities, and threats to 

support organizational risk management decisions. 

Source: 

http://csrc.nist.gov/publications/nistpubs/800-137/SP800-137-

Final.pdf 

Counter-intelligence Information gathered and activities conducted to 

identify, deceive, exploit, disrupt, or protect against espionage, other 

intelligence activities, sabotage, or assassinations conducted for or on 
286 

behalf of foreign powers, organizations or persons, or their agents, or 

international terrorist organizations or activities. 

Source: (Executive Order 12333, as amended 30 July 2008 and JP 2-01.2, 

CI & HUMINT in Joint Operations, 11 Mar 2011) 

http://www.fas.org/irp/eprint/ci-glossary.pdf 

Counter-proliferation Those actions (e.g., detect and monitor, prepare to 

conduct counter-proliferation operations, offensive operations, weapons 

of mass destruction, active defense, and passive defense) taken to defeat 

the threat and/or use of weapons of mass destruction against the 

United States, our military forces, friends, and allies. 

Source: (JP 1-02 & JP 3-40) 

http://www.fas.org/irp/eprint/ci-glossary.pdf

D Data Mining The process of collecting, searching through, and 

analyzing a large amount of data within a database, to discover patterns 

of relationships. 

Source: 

http://dictionary.reference.com/browse/data+mining?s=t 

Decryption The process of converting encrypted data back to its original 

form, so it can be understood. 
287 

Source: 

http://searchsecurity.techtarget.com/definition/encryption 

DHS Department of Homeland Security 

DIAA Defense Information Assurance Agency 

Diffie-Hellman Key Exchange Algorithm Cryptographic algorithm used 

for secure key exchange. The algorithm allows two users to exchange a 

symmetric secret key through an insecure wired or wireless channel and 

without any prior secrets. 

Source: (2005 International Conference on Wireless Networks, 

Communications and Mobile Computing) 

http://ieeexplore.ieee.org/xpls/abs_all.jsp?arnumber=1549408&tag=1 

(DRM) Digital Rights Management/ (IRM) Information Rights 

Management A collection of systems and software applications used to 

protect the copyrights of documents and electronic media. These 

include digital music and movies, as well as other data that is stored 

and transferred digitally. DRM is important to publisher of electronic 

media because it helps to control the trading, protection, monitoring, 

and tracking of digital media, limiting the illegal propagation of 
288 

copyrighted works. 

Source: 

http://www.techterms.com/definitions/drm 

DISA Defense Information Systems Agency 

DNI Director of National Intelligence 

DOD Department of Defense 

DOJ Department of Justice 

DTRA Defense Threat Reduction Agency 

E Einstein 3 An advanced, network-layer intrusion detection system (IDS) 

which analyzes Internet traffic as it moves in and out of United States 

Federal Government networks. EINSTEIN filters packets at the gateway 

and reports anomalies to the United States Computer Emergency 

Readiness Team (US-CERT) at the Department of Homeland Security. 

Source: 
289 

http://searchsecurity.techtarget.com/definition/Einstein 

Encryption The conversion of data into a form, called a ciphertext 

(encrypted text), that cannot be easily understood by unauthorized 

people. 

Source: 

http://searchsecurity.techtarget.com/definition/encryption 

Executive Order Official documents, numbered consecutively, through 

which the President of the United States manages the operations of the 

Federal Government. 

Source: 

http://www.archives.gov/federal-register/executiveorders/about.html 

Executive Order 12333 Under section 2.3, intelligence agencies can only 

collect, retain, and disseminate information about a “US person” (US 

citizens and lawful permanent residents) if permitted by applicable law, 

if the information fits within one of the enumerated categories under 

Executive Order 12333, and if it is permitted under that agency’s 

implementing guidelines approved by the Attorney General. The EO 

has been amended to reflect the changing security and intelligence 
290 

environment and structure within the US Government. 

Source: 

https://it.ojp.gov/default.aspx?area=privacy&page=1261#12333 

F FBI Federal Bureau of Investigation 

(FISA) Foreign Intelligence Surveillance Act As amended, establishes 

procedures for the authorization of electronic surveillance, use of pen 

registers and trap-and-trace devices, physical searches, and business 

records for the purpose of gathering foreign intelligence. 

Source: 

https://it.ojp.gov/default.aspx?area=privacy&page=1286 

(FISC) Foreign Intelligence Surveillance Court A special court for which 

the Chief Justice of the United States designates 11 federal district court 

judges to review applications for warrants related to national security 

investigations. 

Source: 

https://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html 
291 

FTC Federal Trade Commission 

I Identifier/Selector Communication accounts associated with a target 

(e.g., e-mails address, phone number) 

IAD Information Assurance Directorate of the National Security Agency 

Intelligence Community Seventeen-member group of Executive Branch 

agencies and organizations that work separately and together to engage 

in intelligence activities, either in an oversight, managerial, support, or 

participatory role necessary for the conduct of foreign relations and the 

protection of the national security of the United States. 

Source: 

http://www.fas.org/irp/eprint/ci-glossary.pdf 

M Meta-data A characterization or description documenting the 

identification, management, nature, use, or location of information 

resources (data). 

Source: A Glossary of Archival and Records Terminology Copyright, 
292 

2012, Society of American Archivists, 

(http://www2.archivists.org/glossary). 

(MLAT) Mutual Legal Assistance Treaty An understanding and 

agreement between two countries that wish to mutually cooperate 

regarding investigation, prosecution, and enforcement of the provisions 

of the laws of the agreeing countries. The MLAT also specifies the 

grounds on which a request by either nation may be rejected or denied 

by the other nation. 

Source: 

http://perry4law.org/clic/?page_id=39 

N NAS National Academy of Sciences 

(NIPF) National Intelligence Priorities Framework DNI’s guidance to 

the Intelligence Community on the national intelligence priorities 

approved by the President. The NIPF guides prioritization for the 

operation, planning, and programming of US intelligence analysis and 

collection. 

Source: 

http://www.fbi.gov/about-us/nsb/faqs 
293 

(NSC/DC) National Security Council Deputies Committee The senior 

sub-Cabinet interagency forum for consideration of policy issues 

affecting national security. The NSC/DC prescribes and review work 

for the NSC interagency groups discussed in a directive. The NSC/DC 

helps to ensure issues brought before the NSC/PC or the NSC have 

been properly analyzed and prepared for decision. The regular 

members of the NSC/DC consist of the Deputy Secretary of State or 

Under Secretary of the Treasury or Under Secretary of the Treasury for 

International Affairs, the Deputy Secretary of Defense or Under 

Secretary of Defense for Policy, the Deputy Attorney General, the 

Deputy Director of the Office of Management and Budget, the Deputy 

Director of Central Intelligence, the Vice Chairman of the Joint Chiefs of 

Staff, the Deputy Chiefs of Staff to the President for Policy, the Chief of 

Staff and National Security Advisor to the Vice President, the Deputy 

Assistant to the President for International Economic Affairs, and the 

Assistant to the President and Deputy National Security Advisor (who 

shall serve as chair). 

Source: 

http://www.fas.org/irp/offdocs/nspd/nspd-1.htm 

(NSC/PC) National Security Council Principals Committee The senior 

interagency forum for consideration of policy affecting national 

security. The regular members of the NSC/PC consist of the Secretary 
294 

of State, the Secretary of the Treasury, the Secretary of Defense, the 

Chief of Staff to the President, and the Assistant to the President for 

National Security Affairs, who serves and chair. 

Source: 

http://www.fas.org/irp/offdocs/nspd/nspd-1.htm 

(NSL) National Security Letter A letter from a United States government 

agency demanding information related to national security. It is 

independent of legal courts and therefore is different from a subpoena. 

It is used mainly by FBI when investigating matters related to national 

security. It is issued to a particular entity or organization to turn over 

records and data pertaining to individuals. By law, NSLs can request 

only non-content information, such as transactional records, phone 

numbers dialed, or sender or recipient of the letter from disclosing that 

the letter was ever issued. 

Source: 

http://en.wikipedia.org/wiki/National_security_letter 

Source: USA PATRIOT Improvement and Reauthorization Act of 2005: 

A legal Analysis Congressional Research Service’s report for Congress, 

Brian T. Yeh, Charles Doyle, December 21, 2006. 

NSS National Security Staff 
295 

NIST National Institute of Standards and Technology 

Non-Disclosure Agreement (commonly referred to as “Gag Orders”) 

Contracts intended to protect information considered to be proprietary 

or confidential. Parties involved in executing a NDA promise not to 

divulge secret or protected information. 

Source: 

http://inventors.about.com/od/nondisclosure/a/Nondisclosure.htm 

NRC National Research Council 

NRO National Reconnaissance Office 

NSA National Security Agency 

NSD/DoJ National Security Division of the Department of Justice 

O ODNI Office of the Director of National Intelligence 
296 

ODOC NSA’s Office of the Director of Compliance 

OIA/DoJ Office of International Affairs of the Department of Justice 

OMB Office of Management and Budget 

OSD Office of the Secretary of Defense 

OTA Office of Technology Assessment 

P PATRIOT Act An Act of Congress that was signed into law by President 

George W. Bush on October 26, 2001. The title of the act is a ten-letter 

acronym (USA PATRIOT) that stands for Uniting (and) Strengthening 

America (by) Providing Appropriate Tools Required (to) Intercept (and) 

Obstruct Terrorism Act of 2001. 

Source: 

http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/html/PLAW107publ56.htm 

PCLOB Privacy and Civil Liberties Oversight Board 
297 

Pen Register A device that decodes or records electronic impulses, 

allowing outgoing numbers from a telephone to be identified. 

Source: 

http://legal-dictionary.thefreedictionary.com/Pen+Register 

PII Personally identifiable information 

PIBD Public Interest Declassification Board 

R (RAS) Reasonable Articulable Suspicion/Reasonable Grounds to 

Believe (as applied to Section 215) A legal standard of proof in United 

States law that is less than probable cause, the legal standard for arrests 

and warrants, but more than an “inchoate and unparticularized 

suspicion or ‘hunch’”; it must be based on “specific and articulable 

facts”, “taken together with rational inferences from those facts.” 

Source: 

http://supreme.justia.com/cases/federal/us/392/1/case.html#27 

Source: 

http://en.wikipedia.org/wik/Reasonable_Articulable_Suspicion#cite_

note-1 
298 

Rockefeller Commission Headed by Vice-President Nelson Rockefeller, 

the commission issued a single report in 1975, which delineated CIA 

abuses including mail openings and surveillance of domestic dissident 

groups. 

Source: 

http://historymatters.com/archive/contents/church/contents_church

_reports_rockcomm.htm 

RSA Algorithm (Rivest-Shamir-Adleman) An Internet encryption and 

authentication system that uses an algorithm developed in 1977 by Ron 

Rivest, Adi Shamir, and Leonard Adleman. The RSA algorithm is the 

most commonly used encryption and authentication algorithm and is 

included as part of the Web browsers from Microsoft and Netscape and 

many other products. 

Source: http://searchsecurity.techtarget.com/definition/RSA

S Section 215 Statutory provision of FISA that permits the government 

access to business records for foreign intelligence and international 

terrorism investigations. The governing federal officials are permitted 

the ability to acquire business and other ‘tangible records’ which 

include: business records, phone provider records, apartment rental 
299 

records, driver’s license, library records, book sales records, gun sales 

records, tax return records, educational records, and medical records. 

Under this provision, federal investigators can compel third-party 

record holders, such as telecom firms, banks or others, to disclose these 

documents. In order to use this provision, the US government must 

show that there are reasonable grounds to believe that the records are 

relevant to an international terrorism or counterintelligence 

investigation. 

Source: 

http://www.law.cornell.edu/uscode/text/50/1861 

Source: 

http://belfercenter.ksg.harvard.edu/publication/19163/usapatriot_act.

html 

Section 702 Statutory provision for the targeting of individuals 

reasonably believed to be non-U.S persons located outside the United 

States. 

Source: 

http://www.fas.org/irp/news/2013/06/nsa-sect702.pdf 

(SSL) Secure Sockets Layer A commonly used protocol for managing 

the security of a message transmission on the internet. 
300 

Source: 

http://searchsecurity.techtarget.com/definition/Secure-Sockets-LayerSSL 

(SIGINT) Signals Intelligence Intelligence derived from electronic 

signals and systems used by foreign targets, such as communications 

systems, and radar communications system. 

Source: 

http://www.nsa.gov/sigint 

Social Networking A dedicated website or other application that 

enables users to communicate with each other by posting information, 

comments, messages, images, etc... 

Source: 

http://www.oxforddictionaries.com/us/definition/american_english/

social-network 

Splinternet Also referred to as “cyberbalkernization” or “Internet 

Balkanization”, it is the segregation of the Internet into smaller groups 

with similar interests, to a degree that they show a narrow-minded 

approach to outsiders or those with contradictory views. 

Source: 
301 

http://www.techopedia.com/definition/28087/cyberbalkanization 

T Third Party Doctrine Provides that information “knowingly exposed” to 

a third party is not subject to Fourth Amendment protection because 

one “assumes the risk” that the third party will disclose that 

information. The doctrine holds that the information that individual 

disclosed to businesses credit card transactions, phone records, etc. 

doesn’t carry with it a “reasonable expectation of privacy” under the 

Fourth Amendment, as one has “assumed the risk” that this information 

might at some point be disclosed. 

Source: 

http://www.lawtechjournal.com/articles/2007/02_070426_lawless.pdf 

Source: 

http://www.nationalreview.com/agenda/350896/third-partydoctrine-reihan-salam 

T-TIP Transatlantic Trade and Investment Partnership 

Trap-and-Trace A device or process that captures the incoming 

electronic or other impulses which identify the originating number or 

other dialing, routing, addressing, and signaling information reasonably 
302 

likely to identify the source of a wire or electronic communication, 

provided, however, that such information shall not include the contents 

of any communication. 

Source: 18 USC. § 3127(3) 

Tutelage The codename of a classified NSA technology used to monitor 

communications used on military networks. 

Source: http://www.wired.com/threatlevel/2009/07/einstein/ 

W Warfighter Military personnel with a combat or combat related mission. 

Whistle-Blower A person who tells someone in authority about 

something they believe to be illegal that is happening, especially in a 

government department or a company. 

Source: 

http://dictionary.cambridge.org/dictionary/british/whistle-blower 

Wiretap To place a device on (someone’s phone) in order to secretly 

listen to telephone calls. 

Source: 

http://www.merriam-webster.com/dictionary/wiretap 
303 

Z Zero Day Exploitation Taking advantage of security vulnerability on the 

same day that the vulnerability becomes generally known. There are 

zero days between the time the vulnerability is discovered and the first 

attack. It is an exploit of vulnerability in software, which is being 

utilized for the first time and which, therefore, is unknown to defensive 

software. 

Source: 

http://searchsecurity.techtarget.com/definition/zero-day-exploit 
304 

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