US Obligation to Privacy

Privacy & Civil Liberties

needs to communicate goals to the American public that include protecting the nation against threats to national security, ensuring the safety of citizens, friends, allies, and nations with cooperative relationships (Clarke, 2013). Promote national security and foreign policy interests, including counterintelligence, counteracting, and international elements of organized crime. Protect the right to privacy. Protect democracy, civil liberties, and the rule of law, eliminating excessive surveillance and unjustified secrecy. Promote prosperity, security, and openness in a networked world adopting and sustaining policies that support technological innovation globally and establish and strengthen international norms of Internet freedom and security. Protect strategic alliances that preserve and strengthen strategic relationships, protect those relationships, and recognize the importance of 'cooperative relationships'.

The U.S. government must protect national security and personal privacy that includes Fourth Amendment rights. Risk management should involve the rights to privacy, freedom and liberties on the internet and elsewhere, relationships with nations, and trade and commerce, including international. Public officials should never engage in surveillance to punish political enemies, restrict freedom of speech or religion, suppress legitimate criticism or dissent, help preferred organizations promote unfair competition, or benefit or burden groups of religion, ethnicity, race, and gender.

The government should base decisions on careful analysis of consequences, including benefits and cost to a feasible extent. Congress should end storage and transition of meta data held privately for government query and use third party providers where information is retrieved only on relevancy and need to know basis with greater safeguards against intrusion and greater restriction on disclosure of private information.

Protection of privacy for non-U.S. persons should include: authorization by duly enacted laws and properly authorized executive orders, directed exclusively at protecting national security, not be directed at illegitimate ends (theft of trade secrets or commercial gain), not target persons based on political views or religious conviction, not disseminate information not relevant to protecting national security, and be subject to careful oversight and high degrees of transparency consistent with protecting national security. The Privacy Act of 1974 should be applied to all persons globally. The President should create a new process of requiring the highest level approval of sensitive intelligence requirements and methods that identifies uses and limits of surveillance.

Organizational changes should include a Senate-confirmed civilian eligibility for Director of National Security Agency. Head of military unit, U.S. Cyber command, and director of NSA should be separate individuals. A Civil Liberties and Privacy Protection Board should replace the Privacy Oversight Board and have broad authority to review government activity relating to foreign intelligence and counterterrorism. A Special Assistant to the President should be designated and chair a Chief Privacy Officer Council to coordinate privacy policy throughout the Executive Branch. A position of Public Interest Advocate should represent interests of privacy and civil liberties before the FISC. FISC's decisions should be transparent and allow for change.

Internet governance should include all appropriate stakeholders. U.S. government should take appropriate steps to promote internet security, including encryption standards and measures. Privacy and Civil Liberty Impact Assessments should be created to assess data mining for statistical reliability, cost effectiveness, and privacy protection. Classified information should be shared by need to know. Personnel investigations should be eliminated. Restrictions should include software, standards, and practices.

US Obligation to Privacy

Surveillance of non-U.S. persons should be authorized by duly enacted law, be directed exclusively at national security, and not be directed at illegitimate ends. It should not disseminate information not relevant to protecting national security. It should clearly indicate not targeting non-U.S. persons located outside the U.S. based solely on political views or religious convictions and must be subject to careful oversight and the highest degree of transparency consistent with protecting national security

Section 702 raises questions concerning sufficient respect of legitimate privacy interests of non-U.S. persons. When non-U.S. persons are outside the U.S., law still provides full protection of Fourth Amendment rights. Section 702 does not authorize NSA to acquire content of communications of masses of ordinary people. It does authorize interceptions of communications only with reasonable suspicion of particular identifiers are being used to communicate foreign intelligence information. NSA's determinations are subject to constant, ongoing, independent review to ensure the targeting of only identifiers that meet this criteria.

FISA's strict limitations on government surveillance of U.S. persons reflects respect for privacy and a concern for potential government abuse within our own political system. Special protections must be understood as a safeguard of democratic accountability and effective self-governance. The existence of these protections can be applied across the globe. Checks and balances enable the special protections to contribute to sustainable democratic ideals abroad.

Nations treat their own citizens different than citizens of other nations. Being a good neighbor is a compelling reason to treat international citizens with respect and dignity. Aggressive surveillance efforts can trigger economic repercussions for American businesses because of distrust. Recent disclosures have generated concern in this area. It could also alienate other nations, fracture Internet unity, and undermine international free flow of information.

There is also the issue of personal privacy and human dignity. Both Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights prohibit arbitrary or unlawful interference with personal privacy. The U.S. should lead protection by all nations of human rights including privacy.