By RICHARD A. CLARKE, MICHAEL J. MORELL, GEOFFREY R. STONE, CASS R. SUNSTEIN and PETER P. SWIRE
The New York Times
THE United States and its allies face major national security threats, particularly from international terrorism, the proliferation of weapons of mass destruction, and cyberwarfare and espionage. Effective surveillance by the National Security Agency and other agencies within the intelligence community has helped to keep Americans safe from such threats. The nation will continue to need such protection in the future.
The five of us came from diverse backgrounds, experiences and perspectives. After carefully reviewing the activities and culture of the intelligence community, we were all impressed with its commitment both to serve the nation and to act within the law. Our recommendations, as members of the President’s Review Group on Intelligence and Communications Technologies, appointed in August, are designed to strengthen the protection of privacy and civil liberties without compromising the central mission of the intelligence community.
Our major conclusion is that the nation needs a package of reforms that will allow the intelligence community to continue to protect Americans, as well as our friends and allies, while at the same time affirming enduring values, involving both privacy and liberty, that have made the United States a beacon of freedom to so much of the world. We made 46 recommendations to the president. We offer here a summary of 10 of our most significant conclusions, in the hope of explaining our reasoning to the American people and encouraging a public discussion of these vital issues.
1. The government should end its domestic program for storing bulk telephone metadata. The current program creates potential risks to public trust, personal privacy and civil liberty. In some cases, the government will have a national security justification for access to such metadata, which should be held instead either by private providers or by a private third party, and which should be available only after an appropriate order by a court.
2. Americans deserve strong safeguards against intrusions into their personal domain. Public officials should not have access to otherwise private information (such as bank records, credit card records, phone records and Internet data) from third parties (such as banks, credit card companies, telephone companies and Internet providers) without a court order.
3. We need more transparency in the system. Congress should enact legislation to authorize telephone, Internet and other providers to disclose to the public general information about orders they receive directing them to provide information to the government. Moreover, the government itself should disclose, on a regular basis, similar general information about the orders it has issued in programs whose existence is unclassified.
4. When Americans engage in communications with non-Americans — an increasingly common practice in a world of global communications — Americans should be assured that their government will respect their privacy. If the government incidentally captures communications of Americans when they are communicating with non-Americans, it should not be permitted to use those communications in any proceeding against the American citizen.
5. Steps should be taken to protect the privacy, and to respect the dignity, of non-Americans. The protections of the federal Privacy Act should generally be applied to non-Americans. The United States should publicly affirm that (consistent with existing practice) any surveillance targeting non-Americans — even those outside the United States — must be directed exclusively at protecting the national security interests of the United States or our allies. Also consistent with existing practice, the government should affirm that such surveillance must never be directed at illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries.
6. To protect our nation’s security, surveillance against non-American citizens in foreign nations, including foreign leaders, may be justified, but to ensure that such surveillance is justified and not inconsistent with other national priorities, the president should create a new process, requiring high-level policy approval of all sensitive intelligence requirements and the methods that the intelligence community may use to meet them.
7. Our legal system is based on the fundamental premise of the adversarial presentation of competing views. Congress should create the position of public interest advocate to represent the nation’s interests in the protection of privacy and civil liberties before the Foreign Intelligence Surveillance Court. In addition, the decisions of the court should be far more transparent; they should be declassified whenever possible.
8. Congress should create a strengthened and independent Civil Liberties and Privacy Protection Board with authority to review government activity relating to foreign intelligence generally, and not only for counterterrorism, whenever that activity has implications for civil liberties and privacy.
9. Substantial steps must be taken to safeguard Internet freedom. The United States should support international norms or agreements to increase confidence in the security of online communications. We should make it clear that the United States will not in any way subvert, undermine, weaken or make vulnerable generally available commercial encryption. To this end, the United States should support efforts to encourage the greater use of encryption technology for data in transit, at rest, in the cloud and in storage.
10. Significant reforms must be adopted to reduce the risks associated with “insider threats,” which can threaten privacy and national security alike. A governing principle is plain: Classified information should be shared only with those who genuinely need to know. Departments and agencies should institute a “work-related access” approach to the dissemination of sensitive, classified information and should adopt network security practices that are at the cutting edge of technology.
These recommendations are designed to strike the right balance among varied, and often competing, interests. We see no reason to disparage the work of the intelligence community or the National Security Agency, but we do see reason to enact reforms that will allow that work to continue while erecting strong foundations to safeguard individual privacy, dignity and liberty as well.
Without these reforms, which should be supported by the intelligence community as well as by its critics, we fear that pressure might grow for more sweeping and perhaps unwarranted changes that could ultimately put our nation at risk. Now is the time to get the balance right.