Ethics and Oversight in the Intelligence Community

Introduction

This literature review first examines the history of intelligence oversight (IO) and then explains the current problems it faces in terms of ethics and the arrival of the Digital Age, which has significantly complicated the matter. It next synthesizes the literature on the various ethical theories and how they further complicate the issue of IO. Finally, it discusses research on the fundamentals of ethics and offers recommendations for future research.

History of Intelligence Oversight

The history of IO begins with the purpose for which it was established: to safeguard the privacy and rights of U.S. persons while enabling the Department of Defense to carry out its intelligence functions most effectively (Ford 2006, 721). The question that has always been at the forefront of IO, however, is the question of ethics. As Goldman (2013) notes, as far back as 1929 this question of ethics and its role in intelligence gathering was addressed by Secretary of State Stimson, who made his views clear when he stated, "Gentlemen do not read each other's mail. Idealism aside, since antiquity virtually all major powers have maintained intelligence services for the basic purpose of ensuring their security and existence" (79). In short, Stimson's point was that government service and security should be provided within an ethical framework—meaning the government should not be in the business of spying on citizens or violating their constitutional rights.

Much has changed since the 1920s. In just the past two decades, the nation has undergone a serious transformation into more of a surveillance state than was ever thought possible. The attacks of September 11, 2001 were the main impetus for this transformation, but the general public was not fully aware of the change until the revelations of Edward Snowden, the NSA whistleblower who revealed the extent to which intelligence was being gathered on U.S. persons in apparent violation of privacy rights (Landau 2013). Snowden demonstrated that by the second decade of the twenty-first century, the United States had become a surveillance state in practice, not merely in theory.

And yet, in the face of Snowden's revelations, Wizner (2017) affirms that the nation's institutions and organizations altered their practices and swung from collecting every piece of digital data on Internet users to being more mindful of privacy rights. From courts to Congress to media firms and technology companies, changes were introduced designed to protect the privacy rights of Internet users (Wizner 2017). However, the effect of Snowden's revelations on the NSA's spying practices has yet to be fully determined when it comes to actual IO within the federal government and its various intelligence agencies. Today, the question of IO is more important than ever before.

From Reagan to Now: Executive Authority and the Digital Age

President Reagan signed Executive Order 12333 into law in 1981. This order was intended to provide for "the effective conduct of United States intelligence activities and the protection of constitutional rights"—though the degree to which that would be achieved has been debated (Brown and Cinquegrana 1985, 98). As Brown and Cinquegrana (1985) observe, Section 2.5 of that order delegates to the Attorney General:

the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power (99).

One of the authorized techniques was the warrantless searching of real and personal property. Five years earlier, President Ford had issued Executive Order 11905, which prohibited such searches. President Carter, in 1978, had issued Executive Order 12036, which built on the Ford prohibition to include foreign agents unless specifically authorized by the President. Reagan's order swept both aside. Prior to Reagan's executive order, the federal government had struggled with the issue of IO and had gone to the Foreign Intelligence Surveillance Act (FISA) courts for surveillance requests (Brown and Cinquegrana 1985). Reagan's order, however, settled the question of who had the authority to grant surveillance. What remained to be seen was how and in what manner that authority would be exercised.

Technology also improved dramatically, making the gathering of Big Data a major opportunity for intelligence agencies to collect as much information on individuals as possible. This was a game changer for intelligence, and the Digital Age became the portal through which intelligence oversight entered an entirely new realm where moral and ethical questions would have to be asked anew. Cantarella (2016) notes that "the revelations coming from the Snowden Archives have shown how recent technological developments have led to a quantitative and qualitative breakthrough in Signals Intelligence," and also how "the mass data gathering plans of the NSA and its American and British partners" were being used to spy on companies and individuals not considered foreign agents (21).

Cantarella (2016) further notes that phone companies were sharing consumer data with the NSA, and that private conversations were being data-mined and monitored by the NSA with the collaboration of major technology companies such as Apple, Google, Facebook, and Microsoft (21). It was a brave new world in which all digital information was up for grabs and no one's rights had been clearly defined in the digital frontier. Even today it remains unclear what is moral and what is immoral when it comes to surveillance and intelligence gathering. Part of the problem is that there are so many different ethical theories and systems that virtually any action can be justified if the right theoretical framework is applied. That is why some intelligence agencies apply a legalistic framework, in which the only question becomes, "What does the letter of the law say?" This is the approach of the CIA (Congressional Research Service 2018)—but critics have accused the CIA of adopting a legalistic framework that falls short of genuine ethics, since legal language can be maneuvered around in ways that undermine the entire foundation of ethical theory, unless one embraces moral relativism (Cantarella 2016).

Conclusion and Recommendations for Future Research

The literature shows that IO was instituted out of an ethical awareness of the need to protect the rights and privacy of U.S. persons. With the arrival of the Digital Age, however, a new frontier has opened up and it is unclear exactly what people want or expect in terms of protection and privacy. Culture and social reality are changing rapidly.

The reason privacy has served as the underlying foundation of all ethical guidelines related to intelligence oversight is that the very essence of information security is rooted in keeping information out of the hands of those who should not have access to it. The Digital Age has allowed information to be accessed by individuals who may not be authorized to have it, and because information flows are so essential to data communications—enabling people to share messages and data more easily than ever before—there must be some common understanding that risks are attached to these flows.

Future research should therefore consider analyzing the possibility of legislation that would create an information-superhighway intelligence team legally authorized to oversee what passes through digital systems. Data may need to be classified as a form of commerce, and just as all commerce is subject to oversight, so too should data potentially be. The ethical and legal ramifications of this concept deserve careful study and analysis, including whether such an approach would have public approval.

References

Bailey, Christopher, and Susan M. Galich. "Codes of Ethics: The Intelligence Community." International Journal of Intelligence Ethics 35.2 (2012): 77–99.

Brown, William F., and Americo R. Cinquegrana. "Warrantless Physical Searches for Foreign Intelligence Purposes: Executive Order 12,333 and the Fourth Amendment." Cath. UL Rev. 35 (1985): 97.

Cantarella, Michele. "Intelligence Ethics in the Digital Age." (2016).

Congressional Research Service. "CIA Ethics Education: Background and Perspectives." (2018).

Ferrari, Rachel. "Moral Relativism and Dangerous Ethical Dilemmas in the US Intelligence Community." (2018).

Ford, Christopher M. "Intelligence Demands in a Democratic State: Congressional Intelligence Oversight." Tul. L. Rev. 81 (2006): 721.

Goldman, Jan. "Teaching About Intelligence and Ethics." Journal of US Intelligence Studies 20, no. 2 (2013): 79.

Hayes, Jonathan. "The Cinema of Oliver Stone: Art, Authorship and Activism by Ian Scott and Henry Thompson." Film & History: An Interdisciplinary Journal 49, no. 1 (2019): 78–80.

Landau, Susan. "Making Sense from Snowden: What's Significant in the NSA Surveillance Revelations." IEEE Security & Privacy 11, no. 4 (2013): 54–63.

Mill, J. S. On Liberty. London: John W. Parker and Son, West Strand, 1859.

Mosser, Kurt. Ethics and Social Responsibility. San Diego: Bridgepoint, 2013.

Plato. The Dialogues, vol. 1. Online Library of Liberty, 2010.

Sen, Amartya. "Evaluator Relativity and Consequential Evaluation." Philosophy & Public Affairs (1983): 113–132.

Shafer-Landau, R. The Fundamentals of Ethics. UK: Oxford University Press, 2014.

Wizner, Ben. "What Changed After Snowden? A US Perspective." International Journal of Communication 11 (2017).