Category Archives: Surveillance

Effective Oversight of Large-Scale Surveillance Activities: A Human Rights Perspective

Daragh Murray, Pete Fussey, Lorna McGregor, and Maurice Sunkin explore the international human rights law implications of state surveillance.

Today, state surveillance involves the large-scale collection and analysis of digital data—activities which allow for widespread monitoring of citizens. And while commentary on the legality of these bulk surveillance regimes has focused on whether this routine surveillance is permissible, the European Court of Human Rights has recently held that, subject to appropriate safeguards, surveillance of this type is legitimate, and sometimes necessary, for national security purposes in a democratic society.

In their analysis, the authors outline the types of oversight mechanisms needed to make large-scale surveillance human rights compliant. To do so, they break down state surveillance into its constituent stages—authorization, oversight, and ex post facto review—and focus their attention on the first two stages of the process.

First, they argue that effective oversight of authorizations requires increasing data access and ensuring independent judicial review. Second, they argue that effective oversight of ongoing surveillance requires improving technical expertise and providing for long term supervision. The authors conclude that a “court-plus” model of judicial officers and non-judicial staff would deliver enhanced judicial qualities to authorizations while also providing continuous engagement through ongoing review and supervision.

The NSA’s New SIGINT Annex

Previously been published in Lawfare (Jan. 15, 2021), in this paper David Kris reviews new National Security Agency guidance designed to regulate signals intelligence (SIGINT) activity that implicates US persons’ privacy and the Fourth Amendment. Officially an annex to the manual of rules governing all DOD elements—DOD Manual 5240.01—the new “SIGINT Annex” replaces the prior NSA annex, last significantly updated in 1988.

This paper reviews and analyzes the new SIGINT Annex, reading it in context with the Raw SIGINT Guidelines, the PPD-28 Procedures, and the current version of USSID-18, occasionally comparing it to the DOD Manual, the Prior Annex, and a corresponding set of internal procedures issued in 2017 by the Central Intelligence Agency.

Gathering Intelligence: Drifting Meaning and the Modern Surveillance Apparatus

Since its implementation in 1981, Executive Order 12,333 has served as a general charter governing the structure and operations of the Intelligence Community. While legislation has imposed a degree of added judicial and congressional oversight, the executive branch continues to retain sole discretion over large swathes of foreign intelligence activity today.

Over the past several decades, and in accordance with E.O. 12,333’s mandate, members of the Intelligence Community have each created internal agency manuals to guide their foreign intelligence operations. These manuals identify and define a range of technical terms critical to determining the scope of agencies’ intelligence-gathering authority, including what information is gathered, how long that information is retained, and the uses to which it may be put. But over time, the dispersion of authority to make decisions within and across intelligence agencies has enabled drift in the meaning of these terms. Together, the manuals have created a thicket of often conflicting and unclear definitions that are difficult for Congress, the courts, and even committees within the executive branch to understand.

In this article, Diana Lee, Paulina Perlin, and Joe Schottenfeld provide the first sustained analysis of these definitional inconsistencies, their consequences, and efforts to address the problem from within and outside the executive branch. In particular, it focuses on three terms that determine when the intelligence cycle “officially” begins: “collection,” “acquisition,” and “targeting.” By analyzing these three terms, this Article demonstrates the lack of clarity that executive discretion and dispersal create. This lack of clarity, in turn, makes it difficult for meaningful oversight, such as congressional hearings, to occur. The Article concludes by offering recommendations to clarify the parameters of the government’s intelligence-gathering authority. As technological advancements continue to expand the Intelligence Community’s capacity to gather information, it is imperative that the government adopt measures to facilitate effective oversight over the executive’s foreign intelligence operations.