Intelligence Oversight Ethics Research Paper

This literature review first looks at the history if intelligence oversight (IO) and then explains the current problem it faces in terms of ethics and the arrival of the Digital Age, which has complicated the matter. It next synthesizes the literature on what the various ethical theories are and how this further complicates the issue of IO. Finally, it discusses research on the fundamentals of ethics and gives recommendations for future research.

History of IO

The history of IO begins with the purpose for which it was established, which was to safeguard the privacy and rights of U.S. persons while enabling the Department of Defense to carry out its intelligence functions most effectively (Ford 2006, 721). The question that has always been at the forefront of IO, however, is the question of ethics. As Goldman (2013) notes, as far back as 1929 this question of ethics and its role in intelligence gathering was addressed by Secretary of State Stimson, who made his views on the matter clear when he stated, “Gentlemen do not read each others’ mail. Idealism aside, since antiquity virtually all major powers have maintained intelligence services for the basic purpose of ensuring their security and existence” (79). In short, Stimson’s point was that government service and security should be provided within an ethical framework, which means the government should not be in the business of spying on citizens or of violating the constitutional rights of citizens.

A lot has changed since the 1920s when Stimson made those remarks. Just in the past two decades the nation has undergone a serious transformation into more of a security state than was ever thought possible. 9/11 was the main impetus for this transformation, but the populace was not as aware of the change until the revelations of Edward Snowden, the NSA whistleblower who revealed to the public the extent to which intelligence was being gathered on U.S. persons in obvious violation of privacy rights (Landau 2013). Snowden showed that by the second decade of the 21st century the United States had become a surveillance state.

And yet in the face of Snowden’s revelations, Wizner (2017) affirms that the nation’s institutions and organizations have altered the ways and have swung from collecting every piece of digital data on Internet users to being more mindful of the privacy rights of persons: from courts to Congress to media firms and technology companies, changes have been introduced designed to protect the privacy rights of Internet users (Wizner 2017). However, the effect of Snowden’s revelations on the NSA’s spying practices has yet to be determined when it comes to actual IO within the federal government and its various intelligence agencies. Today, the question of IO is more important than ever before.

From Reagan to Now

President Reagan signed Executive Order 12333 into law in 1981 and this order was meant to provide for “the effective conduct of United States intelligence activities and the protection of constitutional rights”—though the degree to which that would be made possible has been debated (Brown and Cinquegrana 1985, 98). As Brown and Cinquegrana (1985) observe, 2 Section 2.5 of that Order delegates to the Attorney General

the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power (99).

One of the authorized techniques was the warrantless searching of real and personal property. Five years earlier, Ford had issues Executive Order 11905, which prohibited such searches. Carter in 1978 had issued Executive Order 12036, which built on the Ford prohibition to include foreign agents, unless specifically authorized by the President. Reagan’s order swept both aside. Prior to Reagan’s EO, the federal government had struggled with the issue of IO, and had gone to the FISA courts for surveillance requests (Brown and Cinquegrana 1985). Reagan’s EO, however, put an end to who had the authority to grant surveillance. What remained to be seen was how and in what manner that authority would be carried out.

Technology also improved, which made the gathering of Big Data a major opportunity for intelligence agencies to gather as much information on people as they possibly could. This was a game changer for intelligence, and the Digital Age was the portal by which intelligence oversight would enter into an entirely new realm, where moral and ethical questions would have to be asked all anew. Cantarella (2016) notes that “the revelations coming from the Snowden Archives have shown how the recent technological developments have led to a quantitative and qualitative breakthrough in Signals Intelligence” but also how “the mass data gathering plans of the NSA and its American and British partners” were being used to spy on companies and individuals who were not considered foreign agents (21). How far had it gone? Cantarella (2016) notes to readers, who by now are likely to accept the following as par for the course, a matter of fact, a price that is paid to have cell phones and instant communication—but at the time, the Snowden revelations were controversial to say the least because they begged the question of just what kind of IO was in place in the intelligence community when it came to Big Data: “phone companies were sharing their consumer data with the NSA; private conversations were data mined and monitored by the NSA with the collaboration of ITC giants such as Apple, Google, Facebook and Microsoft” (Cantarella 2016, 21). It was a brave new world in which all digital information was up for grabs and no one’s rights had been defined in the digital frontier. Even today it is still unclear as to…

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…to understand in Shafer-Landau’s (2014) book, which are that 1) subjectivism and relativism are a kind of halfway point between moral objectivism and moral nihilism; 2) Subjectivists themselves are divided on the matter of cultural relativism, as some believe that society can have very wrong views on morality; 3) moral knowledge depends upon moral truth, so if there is no objective moral truth there is nothing (the argument of the moral nihilists); and 4) moral objectivism depends upon the idea of universal moral laws existing; however, there are also cultural norms that create a kind of moral subjectivity that must also be taken into consideration. By these concepts Shafer-Landau shows that there is no one way to conclude that the status of morality can be wholly determined by moral objectivists, subjectivists or nihilists, which gives support to the argument by Bailey and Galich (2012) that multiple ethical systems are likely to be needed for each different intelligence agency. There are many points among the three ethical perspectives that must be considered in order to make sense of the world.

The main assumptions underlying the Shafer-Landau’s thinking is that moral objectivity cannot be true if subjectivity exists or rather if the subjective experience is a reality that coincides with objectivity. This assumption leads the author into thinking about all of the moral positions in terms of an either/or type of situation. One is either an objectivist or a relativist or a subjectivist or a nihilist. Reality should indicate, however, that objectivity and subjectivity coincide and that it is up to the individual or society to elevate one over the other (Mosser 2013).

Conclusion: Future Research

The literature shows that IO was instituted out of an ethical awareness of the need to protect the rights and privacy of U.S. persons. With the arrival of the Digital Age, however, a new frontier has opened up and it is unclear exactly what people want or expect in terms of protection and privacy. The culture and reality are changing.

The reason that privacy has served as the underlying foundation of all ethical guidelines related to intelligence oversight is that the very essence of information security is rooted in the concept of keeping information out of the hands of people who should not have access to it. The Digital Age has allowed for information to be accessed by individuals who may not be authorized to have it, and because information flows are so essential in the transfer of data communications, making it possible for people to share messages and data in ways that are easier today than ever before, there has to be some common understanding that risks are attached to these flows.

Future research should consider, therefore, analyzing the possibility of legislation that would create an information superhighway intelligence team that legally oversees or has the ability to oversee what passes through the system. Data may need to be considered a type of commerce, and just as all commerce is subject…