Enterprise Objective (US0111)

Implement Intelligence Community “Enterprise Objective” on Privacy, Civil Liberties, and Transparency The U.S. Intelligence Community (IC) must be accountable to the American people in carrying out its national security mission in a way that upholds the country’s values. The core principles of protecting privacy and civil liberties in our work and of providing appropriate transparency about our work must be integrated into the IC’s programs and activities. Building on the IC’s open government commitments made in NAP3, and reflecting the further institutionalization of the Principles of Intelligence Transparency, the 2019 National Intelligence Strategy of the United States of America (NIS) establishes an Enterprise Objective on privacy, civil liberties, and transparency. Enterprise objectives provide the foundation for integrated, effective, and efficient management of mission capabilities and business functions. To meet this enterprise objective, we will incorporate privacy and civil liberties requirements into IC policy and programs to ensure that national values inform the intelligence mission. We will engage proactively with oversight institutions and our partners to enhance public understanding and trust in the IC. We will practice and promote appropriate transparency in the IC to make information publicly available without jeopardizing national security. Doing so is necessary to earn and retain public trust in the IC, which directly impacts IC authorities, capabilities, and resources. Mission success depends on the IC’s commitment to these core principles.

7. Implement Intelligence Community “Enterprise Objective” on Privacy, Civil Liberties, and Transparency

Main Objective

“Implement Intelligence Community “Enterprise Objective” on Privacy, Civil Liberties, and Transparency”

Milestones

None provided.

Editorial Note: For the complete text of this commitment, please see the United States’ action plan at: https://open.usa.gov/assets/files/NAP4-fourth-open-government-national-action-plan.pdf.

Commitment analysis

This commitment will implement the intelligence community’s (IC) “Enterprise Objective” (EO) on privacy, civil liberties, and transparency. The EO is enshrined in the 2019 National Security Strategy of the United States of America (NIS 2019), which “provides the [IC] with strategic direction from the Director of National Intelligence” over a four-year period. [84] NIS 2019 includes seven EO’s that “provide the foundation for integrated, effective, and efficient management of mission capabilities and business functions.” [85] The seventh EO concerns “privacy, civil liberties, and transparency” to “safeguard privacy and civil liberties and practice appropriate transparency to enhance accountability and public trust.” [86] This EO represents “the first time…there is a stand-alone enterprise objective in the NIS” focused on civil liberties and transparency. [87] Under this EO, the IC will:

1. Incorporate privacy and civil liberties requirements into IC policy and programs to ensure that national values inform the intelligence mission.
2. Engage proactively with oversight institutions and our partners to enhance public understanding and trust in the IC.
3. Practice and promote appropriate transparency in the IC to make information publicly available without jeopardizing national security. [88]

These activities are copied verbatim in Commitment 7, which states that they will “earn and retain public trust in the IC.” [89] This is also verbatim from NIS 2019. [90]

Including this EO in NIS 2019 is closely related to The Principles of Intelligence Transparency for the Intelligence Community. The Principles were issued by the Director of National Intelligence in 2015 to “provide general norms for the IC to follow in making information publicly available that enhances public understanding of intelligence activities while continuing to protect information when disclosure would harm national security.” [91] The Principles formed the basis of an earlier commitment in NAP3 to “Increase Transparency of the Intelligence Community,” [92] which had a moderate potential impact and limited completion at both the midterm and end-of-term. [93]

The commitment is relevant to the OGP value of access to information by virtue of its intention to provide the public with access to information on the IC.

Civil society has long demanded greater transparency from the IC. The Brennan Center for Justice, a nonprofit that works for national security transparency, notes that while “national security might sometimes require that the operational details of military or intelligence efforts be kept secret….far too much information is classified and withheld from the public.” [94] The government is “increasingly relying on a vast body of secret law to authorize its national security activities,” thereby “undermin[ing] the basic functions of democratic self-government,” particularly post-9/11. [95] The Brennan Center cites Edward Snowden’s revelation that the U.S. National Security Administration maintained records of American’s phone calls under the Obama administration as a key catalyst for civil society demands for greater transparency and respect for civil liberties within the IC. [96] These concerns persisted among civil society during the publication of NAP4. In June 2018, 24 CSOs, including the Electronic Frontier Foundation and the American Civil Liberties Union, called for the Director of National Intelligence to share data on the extent of phone surveillance of Americans. [97] Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy similarly situates demands for greater IC transparency in the context of the Snowden revelations. Aftergood notes the “CIA and other agencies are sitting on a wealth of unclassified, open source material…that could easily be shared with the public at marginal cost,” with the added potential benefit of “increasing public literacy in national security matters and enriching public debate.” [98] In response to a request for feedback on the commitment, Aftergood echoed these concerns and took issue with the scope of the commitment, stating that the IC Enterprise Objective:

needs to aim at a much more ambitious goal. The American public needs vastly increased access to unclassified intelligence analysis and information, and not simply for reasons of "trust" or accountability. Rather, it is because the public itself is now on the "front lines" of multiple threats to national security, including offensive cyber activity, foreign information operations and global disease [and has] a claim on the relevant insights that US intelligence has to offer….Yet intelligence support to the American public has been totally lacking. [99]

Recent surveys show a clear preference for greater IC transparency, with growing public support for more open information flows. Survey results from summer 2018 indicate what while 59% of Americans feel the IC “plays a vital role in protecting the country,” a bare majority of 51% feel that the IC “effectively safeguards their privacy and civil liberties while pursuing its mission,” and 65% of respondents (up from 54% in 2017) feel that the IC “could share more information with the public without compromising its effectiveness.” [100] Public sentiment is particularly stark among millennials (individuals born 1982−1996); only 47% believe the IC is vital in protecting the country, and 70% favor greater IC public information disclosure. [101] Importantly, Americans’ perceptions regarding the IC’s respect for privacy and civil liberties are roughly similar across the partisan divide for 2018, with 66% of Democrats and 54% of Republicans indicating that the IC is very or somewhat effective in this regard. [102] Thus, there is bipartisan demand for greater transparency and protection of privacy and civil liberties, as described in the commitment text.

While there is clear demand for greater IC transparency and public accountability, the IRM researcher assesses the commitment as having a minor potential impact owing to the relative lack of specificity surrounding what precise actions the IC will take under this commitment. Regarding the three commitment activities, the government does not specify what “privacy and civil liberties requirements” actually entail, nor does it specify which specific policies and programs will be covered. The commitment similarly neglects to specify which oversight institutions and partners will be covered by the commitment, and the frequency or scope of engagement. Finally, the commitment does not define “appropriate transparency” or specify which information would be potentially subject to greater public disclosure. Therefore, the commitment has a minor potential impact.

Commitment 7. Implement Intelligence Community Enterprise Objective

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Minor

● Completion: Substantial

● Did it open government? Marginal

This commitment focused on the implementation of the intelligence community’s (IC’s) Enterprise Objective on privacy, civil liberties, and transparency, included in the 2019 National Security Strategy. It appeared to respond to a long-standing civil society demand concerning the need to increase transparency and accountability in this key policy area. The commitment’s potential for results, however, was assessed as minor due to the lack of specificity of its reach and scope. This assessment was supported by civil society feedback highlighting that “the wording—providing ‘appropriate’ transparency—created a guardrail that gave them complete discretion. It just looks like bureaucratic speak to me that doesn’t entail any meaningful outcome.” [43]

The commitment entailed three broad sets of actions. The first was incorporating privacy and civil liberties requirements into intelligence policy and programs. The second was engaging with oversight institutions and partners to enhance public understanding and trust in the IC. The third was making information publicly available without jeopardizing national security.

The first and possibly most important component of this commitment was implemented in a very limited way. Several strategy documents were produced that acknowledge the need to incorporate privacy and civil liberties requirements into intelligence policy and programs but did not in themselves constitute such incorporation. Privacy and civil liberties considerations were included in the Artificial Intelligence Ethics Framework for the IC, issued in June 2020. [44] Additionally, two periodic reports of activities by the Office of the Director of National Intelligence Office of Civil Liberties, Privacy and Transparency were released during the NAP implementation period. [45]

As for the second component—enhancing public understanding and trust in the IC— information was provided to the public in accessible language about certain aspects of the IC’s work. This included the development of a multimedia website about the history of espionage in the US. [46] Another website with an overview of whistleblowing and whistleblower protections was developed. [47] And the Foreign Intelligence Surveillance Act (FISA) Resource Library was published after the end of the implementation period. [48] It explains how the IC uses FISA Section 702, the ways privacy and civil liberties safeguards are built into its work, and the oversight mechanisms involved. The FISA Resource Library was specifically highlighted by the government official in charge of the commitment as “an unprecedented effort.” [49]

A Private Sector Engagement Portal was created to provide engagement opportunities for private sector partners, including contact information for each area or program. [50]

The most progress was achieved in the area of access to information. This included the release (starting at the very end of the NAP implementation period) of declassified National Intelligence Council coordinated intelligence assessments on various national security issues, including the conflict in Ukraine. [51] Additionally, 113 new items were published on the IC Record Database at Intelligence.gov, 22 of which were explanatory statements adding value to the declassified records released with them. Previously released records were reprocessed to make them fully searchable. [52]

Also released for the first time were the NSA SIGINT Annex, a 2016 manual of procedures governing the conduct of Department of Defense Intelligence Activities; [53] a 2018 FBI guidance for responding to requests for the identities of US persons in disseminated intelligence reports; [54] and 2020 Section 702 certifications, including the government’s package submitted to request authorization to use Section 702 of the FISA. [55]

Additionally, two online hubs were created. [56] One houses Annual Statistical Transparency Reports (currently available from 2014 to 2020), which account for the IC’s use of the FISA and other national security authorities. The other houses the Annual Threat Assessment reports (currently available from 2006 to 2023), which provide an unclassified summary of evaluations of current threats to US national security, including cyber and technological threats and terrorism.

In sum, numerous activities that fit the parameters of the commitment were carried out. Most were related to the publication of information. Consulted civil society stakeholders, however, pointed out limitations in the usefulness of the information that was released, particularly concerning the component aimed at enhancing trust in the IC. They noted that much of the information that was declassified would have been declassified regardless. They also commented on the lack of public awareness regarding the availability of any new information. Most importantly, not much progress appears to have been made toward the commitment’s most transformative aim of incorporating privacy and civil liberties requirements to guide intelligence policy and practice.