Executive Order 12333 was issued in 1981 to regulate national intelligence activities. Part I of the Order outlines the goals and responsibilities of major Federal Agencies and Departments involved with national security an intelligence gathering. Part II created regulations for the collection of intelligence information.
Information is essential to national security. However, the need for such information does not override an individual’s right to privacy and safety. Part II of Executive Order 12333 states: “Collection of such information is a priority objective and will be pursued in a vigorous, innovative and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.”
The following are the only permissible types of information that may be collected:
- Publicly available information
- Information obtained with the consent of the individual
- Information considered foreign intelligence or counterintelligence or obtained during the course of such investigations
- Information necessary to protect any person or organization from harm
- Information about potential sources in order to determine credibility
- Information that is obtained during the course of a lawful investigation
- Information obtained through overheard reconnaissance as long as U.S. individuals are not specifically targeted.
- Any information obtained incidentally which suggests criminal activity
- Information needed for administrative purposes
Executive Order 12333 also places limits on how information may be collected. The following collection methods are not allowed unless otherwise authorized by the guidelines of the agency or the approval of the Attorney General.
In general, agencies may not use:
- electronic surveillance
- mail surveillance
- physical surveillance
- unconsented physical searches
- monitoring devices
The order also outlines a few more specific restrictions:
- The CIA may not conduct electronic surveillance in the United States excep for training, testing or conducting countermeasures
- No agencies other than the FBI may conduct unconsented physical searches unless
- the search is against military personnel and approved by an authorized military commander
- the search is conducted by the CIA against non-United States persons lawfully in its possession
- No agency may use physical surveillance against a United States person abroad to collect foreign intelligence unless it is the only mean of collecting such information.
- The Attorney General of the United States is authorized to approve the use of any intelligence techniques for any purposes against any persons as long as probably cause has been determined.
Executive Order was originally created with the following goals (Section 1.1)
- To foster analytical competition in the Intelligence community
- To develop intelligence information as consistent with United States Law and with consideration of the rights of United States Persons
- Detecting and Countering espionage, terrorism and other threats
- To allow the free exchange of information as consistent with United States law and with consideration of the rights of United States Persons
The Order was amended in 2008 to include the following statement in its list of goals, “The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.”
Executive Order 12333 was created primarily to expand intelligence activities of the U.S. Government and coordinate such activities between different departments and agencies. Protection of privacy for U.S. persons was a secondary concern as evidenced by the wide range of information that may be collected and lack of oversight. However, by outlining the types of information that may be collected, the Order restricts the gathering of information outside of those provisions. The collection restrictions also reinforce privacy protections guaranteed under the Privacy Act of 1974 and similar public sector privacy laws. At its core, Executive Order 12333 is an attempt to reconcile the need for intelligence information with the protection of privacy and civil liberties by the U.S. Government.
CIPP/G Candidate Preparation
In preparation for the Certified Information Privacy Professional Government exam, a privacy professional should be comfortable with topics related to this post including:
- Executive Order 12333