Civil Liberties Protection Officer’s Statement Regarding Privacy and Civil Liberties Oversight Board Guidelines Letter
August 26, 2013
The Director of National Intelligence received a letter dated August 22, 2013 from the Privacy and Civil Liberties Oversight Board (often shortened to “PCLOB”).
The letter indicates that the PCLOB would like to be briefed on the process for reviewing and updating intelligence agency guidelines under Executive Order (EO) 12333. We welcome the PCLOB’s interest, and will, in coordination with the Department of Justice, continue to provide the PCLOB with information regarding these matters.
Executive Order 12333
EO 12333 sets out how the Intelligence Community (IC) is to conduct intelligence activities. The Order embodies principles that are designed to enable IC elements to carry out their missions in a manner that protects privacy and civil liberties. It provides that elements of the Intelligence Community are to collect, retain and disseminate information about United States persons pursuant to guidelines approved by the head of the IC element and the Attorney General, in consultation with the DNI.
Please note that EO 12333 guidelines are separate from the specific procedures required by the Foreign Intelligence Surveillance Act (FISA). FISA procedures apply to information that is collected, retained, and disseminated under FISA, and must first be reviewed and approved by the Foreign Intelligence Surveillance Court. The EO 12333 guidelines referred to herein do not in any way supersede or modify those procedures.
The IC has been working closely with the Department of Justice to review and update agency guidelines under EO 12333, as appropriate. It is important to review these guidelines in light of today’s environment, and to carefully consider any proposed updates to ensure they remain true to the Executive Order’s purpose and requirements, so that intelligence agencies pursue their authorized missions as called for in the Order: “in a vigorous, innovative, and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.”
As we do so, we have remained mindful that protective principles, if stated in a technology-neutral manner, can continue to apply as technologies change. Indeed, EO 12333 was originally finalized in 1981. It was revised in 2008 to align the Order with post-9/11 intelligence reform changes and to promote intelligence integration, while preserving and enhancing the Order’s protections for privacy and civil liberties.
Accounting for New Technology
The 2008 revision of EO 12333 left largely unchanged the part of the Order that specifies privacy and civil liberties protections (for more information on EO 12333, visit CLPO’s pages on dni.gov). Those protections are not tied to specific technologies, and agency guidelines generally implement them in a technology-neutral manner that can continue to apply even as technologies change.
Nonetheless, as the PCLOB letter states, there have been “dramatic changes in information use and technology” in the past decades. We recognize the importance of reviewing and, as appropriate, updating the guidelines in light of these changes.
We look forward to continuing our engagement with the PCLOB to address the matters raised in the letter.
Of general interest, I discuss the issue of how to consider “old rules” in light of “new tools” in the following article I wrote, published in the Texas Law Review in June 2010: Choosing Both: Making Technology Choices at the Intersections of Privacy and Security.
Alexander W. Joel
Civil Liberties Protection Officer