Fred H. Cate, chair of the workshop steering committee, opened the meeting by summarizing the goals and structure of the workshop. He noted that the workshop was organized by the National Academies of Sciences, Engineering, and Medicine and sponsored by ODNI in order to help advance dialogue between members of the IC and outside experts and practitioners around the topic of privacy.
Specifically, the workshop was designed to address (1) privacy challenges presented by new technologies, (2) ways of understanding the public’s behavior and attitudes about data collection and use, and (3) methodologies for making decisions about data collection and use that go beyond mere compliance with the law. A particular goal of the workshop was to address challenges that might impinge on trust around personal privacy, and strategies for anticipating or managing these challenges in ways that might enhance trust.
Alexander W. Joel, civil liberties protection officer, Office of the Director of National Intelligence, noted that the group had convened to help improve understanding of how to protect the security and privacy of U.S. citizens and people around the world. He pointed out that 2015 was the 40th anniversary of the Church committee,1 whose examination of past abuses in the intelligence arena led to major reforms. He noted that the committee did conclude that certain intelligence activities serve proper and necessary ends of the government, and should be preserved under effective restraints. He suggested that the IC’s current governance framework is largely defined by the changes made in response to the Church committee’s 1976 report, including the establishment of congressional oversight committees and strengthened legal oversight within the executive branch. He added that the Foreign Intelligence Surveillance Act (FISA) court currently provides oversight from the judicial branch as well.
Joel noted that, while much has since changed in the world, members of the IC still believe that the existing rules and governance framework provide effective guidance on maintaining balance between security and privacy. He noted that some in the public clearly disagree, and that this divergence of views was part of what the workshop was convened to address.
He read a quote from President Obama:
1 The United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, was formed in 1975 in response to “great public concern that the Congress take action to bring the intelligence agencies under the constitutional framework,” according to Senator Church’s letter of transmittal. The committee’s report was released in April 1976 (Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1976, Intelligence Activities and the Rights of Americans Book II: Final Report of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Washington, D.C.: U.S. Government Printing Office).
Those who are troubled by our existing programs are not interested in repeating the tragedy of 9/11, and those who defend these programs are not dismissive of civil liberties. The challenge is getting the details right, and that is not simple.2
He pointed out that the rapid pace of technological change makes the challenge more difficult, but that technology concerns are not new. He quoted Justice Brandeis’s famous 1928 dissent in Olmstead v. United States:3
The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.4
A similar caution appeared in the Church committee’s report:
In an era where the technological capability of government relentlessly increases, we must be wary of the drift toward “big brother government.” The potential for abuse is awesome and requires special attention to fashioning restraints, which not only cure past problems, but anticipate and prevent the future misuse of technology.5
Joel observed that people often focus on current problems, rather than thinking ahead. He then discussed some of the policy challenges associated with technological change. Many current policies or rules were put into place years ago—even centuries ago, in the case of the United States Constitution. He suggested that this does not mean such rules are bad, but just that we need to figure out how best to apply them.
He suggested that rules and policies tailored to current technologies are unlikely to succeed; policy makers are not experts in technology, and the policy process is relatively slow compared to the pace of technology change. How society should manage the inevitable gap between the rules in place and current technological practices is an open question.
Joel noted that insights into how people value privacy in different contexts would help to enhance understanding of privacy implications of different technologies. Discussion of ethics and best practices in the private sector and elsewhere in the government for big data collection, use, and analysis, would help inform the IC and others about how to fashion responses to emerging privacy challenges.
Joel also discussed the value of transparency and of dialog both between the IC and the public, and between members of the technology and policy communities in advancing dialogues and making progress on privacy. He noted that more transparency will enable the IC to better inform and explain its role to the public, including the rules it obeys and how, and the nature of and need for its activities. He also suggested that technologists and policy experts often share the same goals, whether or not they always speak the same language.
2 Executive Office of the President, “Remarks by the President on Review of Signals Intelligence,” January 17, 2014, https://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence.
3Olmstead v. United States, 277 U.S. 438 (1928).
4 Mr. Joel noted that, while it may sound as if Justice Brandeis was predicting the cloud, he was actually talking about developments in the psychic sciences—a fact about this opinion that is not commonly discussed.
5 Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1976, Intelligence Activities and the Rights of Americans Book II: Final Report of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Washington, D.C.: U.S. Government Printing Office, p. 289.