It’s a privilege and pleasure to be here to share the thoughts of the U.S. Government with this distinguished group of leaders from all walks of life and from all corners of the globe. I was fortunate enough to attend the first RightsCon held in this very same venue in 2011, and it is truly impressive to see how the number of participants and the range of the program have grown.
Over the last eight months, the United States’ signals intelligence collection practices have faced intense criticism from many of the people in this room, and from many others, including foreign governments. But the collection and use of large amounts of data and personal information is not just an issue for my government. It’s a global issue, one that affects every government, every company, and every person. While the United States may be the government that is today facing intense public scrutiny about the scope of our data collection, we will surely not be the last.
It’s not an exaggeration to say that we are living through an inflection point in human history – until a few years ago, the daily collection of large quantities of information about millions of people spread out around the world was simply not possible. But now, for the first time in history, it is. Today, some governments and companies can collect and store a vast quantity of data every day. This is likely to be true for many years to come.
All of us are very concerned with how governments, companies and individuals adapt to this fact. The U.S. government believes that recent technological advances can help to make us safer – for example, they allow us to track terrorists and their funding in ways that weren’t previously possible. But, at the same time, the data collection capabilities available to some governments and corporations, while necessary for some purposes, could, if misused, present serious threats to privacy, personal autonomy, freedom of expression, and democratic government.
I’d like to offer some thoughts today on these issues, based on my perspective from the State Department’s Bureau of Democracy, Human Rights and Labor. My bureau, is of course, only one piece of the U.S. government. Our mandate is to advance human rights internationally, including online, and to help explain U.S. law and policy on these issues to the world.
As you all know, President Obama directed a top-to-bottom review of U.S. signals intelligence practices. He appointed and gave wide access to an experienced, independent Review Group. He assigned a team within his Administration to examine these issues thoroughly. The Privacy and Civil Liberties Oversight Board performed a separate review of certain programs. These reviews solicited input from the full range of stakeholders – including some of you gathered in this room, along with governments, corporations, and civil society groups.
The State Department, including my bureau, was closely involved in these reviews, and made sure that the process included the concerns of our foreign partners, and the human rights obligations of the United States under international law. These reviews produced public reports with specific recommendations from the Review Group and the Privacy and Civil Liberties Oversight Board. In January, the President announced the Administration’s adoption of a series of concrete and substantial reforms. This demonstrates, we think, that the United States is committed to confronting these difficult questions through open, democratic debate – even though they touch on issues that my government, like all governments, is wary about discussing in public.
Today, I’d like to offer some thoughts on U.S. policies, and how they relate to Internet freedom. And I hope that addressing these issues so directly will allow us to broaden the global conversation on Internet freedom to again focus on censorship, and the persecution of those seeking democratic change – issues that have too often been lost over the last eight months.
The United States remains committed to a global network that is interoperable, free and secure, based on an inclusive multi-stakeholder model of Internet governance. That policy was articulated clearly in the Administration’s International Strategy for Cyberspace in 2011, and it has not changed. As part of that, the United States continues to support strong cybersecurity, including strong encryption protocols. Security is a prerequisite to make the Internet useful to all its stakeholders – from businesses, to dissidents, to anyone with a bank account. Strong cybersecurity and strong encryption are critical for an Internet that is truly open to all.
In January, the President issued a Policy Directive that lays out principles that govern U.S. signals intelligence activities. To the best of our knowledge, such transparency on issues of this nature is unprecedented.
I’d like to talk about the principles that guide United States’ signals intelligence collection practices, including the reforms announced by the President.
We believe that such principles can help all of us distinguish the legitimate practices of states governed by the rule of law and democratic institutions from the illegitimate practices of those states that use surveillance for repressive purposes. Some of the organizations and governments in this room have proposed principles along these lines, and we looked closely at those as we went through this process. Some may dismiss the idea that clandestine activity can ever be meaningfully guided by public principles. But that is what we seek to do, and we challenge other governments to do the same.
The first principle guiding U.S. signals intelligence collection is the rule of law. Our intelligence collection occurs pursuant to statutes and executive orders that were adopted as part of our democratic process. Our intelligence agencies are not permitted to exceed these authorities, and are held accountable by all three branches of government.
The second principle guiding our practices is legitimate purpose. U.S. signals intelligence collection is conducted on the basis of articulable and legitimate foreign intelligence and counter intelligence purposes. When the United States collects signals intelligence in bulk, we will only use that data for a finite list of purposes that the recent Policy Directive publically specifies. As President Obama stressed, we do not conduct signals intelligence collection for the purpose of suppressing or burdening criticism or dissent, or disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion. The Directive the President issued makes clear that privacy and civil liberties are integral considerations in planning signals intelligence activities, and that all persons should be treated with dignity and respect, whether they live here or abroad. As stated in Presidential Policy Directive 28, with respect to signals intelligence collection programs, the United States will take the unprecedented step of extending certain protections that we have for Americans to people overseas. Human rights considerations also inform our decisions on intelligence sharing with foreign governments.
Third, U.S. signals intelligence collection follows the principle that surveillance should not be arbitrary. The new Policy Directive states that signals intelligence activities shall be as tailored as feasible. We prioritize obtaining data through public sources, as opposed to non-public signals intelligence collection. When decisions about surveillance are made, we assess whether the benefits of surveillance outweigh its risks, and whether there are other less intrusive alternatives that might accomplish our foreign intelligence requirements. And as the President announced, the United States will be looking for alternatives to the current bulk metadata collection program carried out pursuant to Section 215 of the Patriot Act. We will also be examining the legal and policy distinctions currently made between metadata and content data.
Fourth, decisions regarding overall intelligence collection priorities should be informed by guidance from a competent authority outside the collecting agency, with the understanding that some operational decisions will be made within intelligence agencies.
More specifically, U.S. intelligence agencies currently follow, and have always followed, priorities established by senior policy makers. As set forth in the President’s Directive, the heads of U.S. departments and agencies that participate in the policy processes for establishing signals intelligence priorities and requirements shall, on an annual basis, review any priorities or requirements identified by their departments or agencies.
Fifth, there should be meaningful oversight of intelligence practices. Today, the United States has stringent oversight mechanisms in place for its intelligence practices. The NSA itself has scores of internal compliance officers, and a civil liberties and privacy official. Outside oversight is provided by the Department of Justice and independent Inspectors General within the NSA itself and the Office of the Director of National Intelligence, which also has a civil liberties and privacy office.
The independent Foreign Intelligence Surveillance Court plays a key role in protecting rights, and some collection is authorized only upon approval by that Court. To ensure that that Court hears a broader range of privacy perspectives, the President called on Congress to authorize the establishment of a panel of advocates from outside the government to provide an independent voice in significant cases before the Court. And, while we evaluate new options for the collection of telephone metadata authorized under Section 215 of the Patriot Act, the President has instructed that, except in true emergencies, we work with the FISA Court to obtain approval before we query that metadata. Of course, U.S. intelligence agencies also report to Congress, where there are today, as in the past, vigorous debates on these issues.
Sixth, the United States is committed to increasing transparency with regard to its signals intelligence collection. Our review of our signals intelligence collection over the last eight months is unprecedented in terms of how transparent and inclusive it has been. And one of the key reforms directed by President Obama is to facilitate even greater transparency through the release of opinions of the FISA Court with broad privacy implications and the disclosure of greater information about the national security letters issued by the government to private companies. We’ve already declassified over 40 opinions and orders of this Court. The Director of National Intelligence will also be releasing information for the first time regarding the number of national security orders and requests the government issues nationwide, and the number of targets of those orders and requests. And the government has separately agreed to permit private companies, including Internet providers – to provide an unprecedented level of information regarding the number of national security orders and requests received from the government. In fact, these numbers show that such requests represent a tiny fraction of total user accounts, and present a more accurate picture of how our intelligence authorities are used.
Such transparency is at the root of democratic accountability. U.S. citizens have the opportunity to change our laws and policies through the democratic process.
I’ve discussed six principles here today – rule of law, legitimate purpose, non-arbitrariness, competent authority, oversight, and transparency and democratic accountability. These principles will be an important part of how my bureau engages governments around the world on admittedly difficult questions of Internet freedom. We are proud that U.S. signals intelligence collection is guided by these principles, and that by most measures, U.S. government practices compare very favorably with the practices of other governments. We encourage other governments to evaluate their own signals intelligence practices through the lens of these principles.
That’s enough on surveillance. Privacy rights are human rights. They must be part of the global conversation on Internet freedom, and we welcome that conversation. But they shouldn’t dominate the conversation, to the exclusion of everything else. It is equally important to focus on the freedoms of expression, peaceful assembly and association as they are exercised online in the world today.
And let’s be clear – Internet freedom is in global crisis. More governments are using the Internet to track down and harass dissidents, simply for speaking their minds or organizing their activities. Following China’s example, more governments are seeking to control what information and news their people are allowed to see online as well as how they communicate about it. More governments are purchasing sophisticated cyber tools to penetrate and exploit the computers and networks of their political opponents.
As we move forward on Internet freedom, we must not forget the bloggers languishing in jail throughout the Persian Gulf region. We must not forget writers in Vietnam, imprisoned for questioning their government’s policies – one of whom was sentenced today to prison. We must not forget about efforts to stifle democratic debate online in Turkey. All of us must work persistently and creatively to combat such repression. And, we should all recognize that the governments responsible for many of these problems are very far from following the principles I have laid out today. In fact, I would argue that it is their failure to live up to these principles that distinguishes them from the United States and other democratic governments.
We hope that the Freedom Online Coalition can address all of these issues effectively – the privacy issues, but also the very pressing global threats we face today on freedom of expression and Internet governance. Even if you are critical of U.S. policies, and you believe that my government has more work to do, I invite you to join the United States in calling out human rights abuses wherever they occur, in advocating for democracy around the world, and in supporting an Internet that is truly interoperable, secure and free.