The Obama Administration on Personal Privacy Vs. National Security: Presidential Policy Directive 28 and Its Impact on Signals Intelligence

- Ethan Lazuk - To determine whether the Obama Administration's Presidential Policy Directive 28 (PPD-28) effectively reconciles the balance between personal privacy and national security concerns related to signals intelligence collection (SIGINT), we can first consider the ethical concerns that SIGINT presents for privacy and then evaluate how well PPD-28 addresses these. It is first worthwhile to define SIGINT, as it exists today. A signal refers to the transference of information from one source to another while SIGINT is the process of intercepting signals and analyzing them to find insights into matters of national security. SIGINT can be as basic as bugging a hotel room by concealing a small microphone to record a private conversation, or it can be more extensive, such as accessing sensitive personal information stored on a computerized database. These two examples refer to dataveillance and data mining techniques of SIGINT, respectively. Dataveillance is the act of real-time data monitoring, whether that is eavesdropping on an ongoing conversation or intercepting SMS or "text" messages between cell-phone users. Data mining is the collection of stored byproducts from communications called metadata, such as looking up recorded conversations on CCTV cameras or digging through an email inbox. Inherently, SIGINT violates personal privacy, but as Michelle Atkin points out in Chapter 7 of Balancing Liberty and Security, it is not the violation itself that is the issue, but rather its justification and depth of inquiry. Specifically, is there cause to target a person with SIGINT, and when there is a cause, how much intrusion of privacy does it permit? Ross W. Bellaby, in "The Ethics of Intelligence," published by Routledge, introduces two concerns SIGINT poses for personal privacy. The first is the right of people to autonomy. When a person engages in any form of communication, from a physical letter to a written email to a phone conversation, that person owns the rights to that communication. He or she authored it, and thus it is his or her property. Protecting personal property is a principle of American republican government that precedes the Revolution of Independence itself. Then again, national security is a natural right of the modern nation-state, not to mention it is an enumerated constitutional power of the President under Section II. But Bellaby's concern for autonomy runs deeper than just private property. He invokes the concept of the panoptic gaze or the idea that real or perceived omnipresence of government surveillance manipulates the behavior of innocent people by raising their levels of self-consciousness. In other words, peoples'

actions are not wholly their own, but rather unnatural impulses to paranoia caused by (perceptions of) incessant monitoring. Bellaby further relates how SIGINT can cause a breakdown of social cohesion if it fails to obey high standards of objective discrimination. Ethnic minorities, as an example, are more susceptible to certain forms of SIGINT. With differential treatment, society loses its fundamental base of equality that holds its many forms of human diversity together. Just as SIGINT can alter one person's behavior, so too can it change the dynamics of society itself. Nor is bulk data collection a preferable alternative. As President Obama himself points out in PPD-28, personal communications that have no relation to SIGINT objectives travel on the same networks as relevant conversations with national-security implications. Not only does bulk data overwhelm the abilities of SIGINT analysts to identify the most pertinent information but also it violates the privacy of all citizens. Atkins discusses how the principles of Just Intelligence, derived from Just War Theory, prioritize rightful authorization, discrimination, and proportionality for SIGINT. In other words, violations of personal privacy require authorization from a proper source of authority. Next, discrimination must then be used to target only people who have given cause to be national security threats. And lastly, proportionality must be obeyed so that only information pertinent to SIGINT objective can be justifiably obtained, reviewed, and analyzed. Concerning authorization of SIGINT the Obama Administration's PPD-28 states, "The collection of signals intelligence shall be authorized by statute or Executive Order, proclamation, or other Presidential directive" (page 4). Constitutionally, the President has enumerated authority as commander in chief to protect America's security interests, so by giving the executive office the powers of authorization, PPD-28 follows Atkin's interpretation of Just Intelligence. Another point in PPD-28 addresses the Just Intelligence theme of discrimination: "The United States shall not collect signals intelligence for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion" (Ibid). Of consequence for proportionality is the explicitly stated preference PPD-28 has for overt intelligence gathering, such as through diplomatic channels or more transparent avenues of domestic inquiry like interviewing, before using SIGINT (page 5). This does not place actual limits on SIGINT, but it does express a wish for intelligence officers and analysts to show reticence and use SIGINT judiciously. Regarding tangible limitations, bulk data collection is acknowledged to "consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value" (Ibid). This type of SIGINT is thus discouraged in PPD-28, a move that is "intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside" (Ibid).

The general ideas promulgated by PPD-28 give SIGINT increased ethical formidability in light of the pervasive and still growing prominence of digital communications in America. Importantly for both advocates of civil liberties and national intelligence, the emphasis on discrimination in PPD-28, in particular, holds promise for the greater privacy of citizens and the increased efficacy of intelligence analysts. Beyond its content, PPD-28 is an important symbolic gesture by the Obama Administration that the balance between privacy and security in America promises to be an ongoing topic of discussion and revisiting, and considering the rapid evolution of communications technology, that is precisely what is needed.