Procedures Governing the Conduct of DoD Intelligence Activities
I was a junior in high school listening to John Cougar’s “Jack and Diane” on the way to the movies to see Fast Times at Ridgemont High. Sony released its first CD player, and the Commodore 64 computer arrived. In December that year, the Department of Defense released regulation 5240 1-R, a full year after Ronald Reagan signed Executive Order 12333 that provided detailed guidance to Federal agencies on intelligence activities.
That was 1982, nearly three and a half decades ago, and a lot has changed since then.
On August 10, to relatively little fanfare, the Department of Defense announced release of DoD Manual 5240.1, “Procedures Governing the Conduct of DoD Intelligence Activities.” 5240.01 is a long overdue update to DoD 5240.1-R, “Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons,” published in 1982.
What’s changed? The DoD fact sheet accompanying the release answers that question: “The manual was last issued in 1982. In the intervening decades, there have been significant changes in technology, law, and intelligence practices: The information technology revolution has significantly affected intelligence collection and analysis capabilities and raised new issues regarding privacy and civil liberties. New and varied types of asymmetric threats have emerged, including threats from non-state terrorist actors, which have changed the way we defend our nation. . . .” And on it goes.
KEY UPDATES
Besides updating definitions of terms like collection, the manual provides guidelines for retaining and destroying collected information and accountability for “special circumstances.” Special circumstances acknowledge and attempt to attend to heightened civil liberty concerns about means of collection (which, today, can be more invasive), volume of collection (which, today, can be much greater), and the sensitivity of that information (since, today, collection can dive deeper than ever into personal information of all sorts). Additionally, the manual tackles the notion of “publicly available” information in light of the contemporary context where the means of transferring information by way of public systems blurs that line considerably. And, as if to remind that the old fashioned physical intelligence collection is still game, the manual provides new rules for “for nonconsensual physical searches within the United States and for targeted collection of U.S. person information outside the United States.”
WHAT PEOPLE ARE SAYING
On the release date, most of America was distracted by Archery, Fencing, and Women’s Beach Volleyball at the 2016 Rio Olympics (Kerri Walsh Jennings and April Ross were taking on Switzerland). However, policy wonks, civil libertarians, and conspiracy theorist were busy reading all 56 pages of 5240.1. Nextgov’s Aliya Sternstein concluded, “The revision aims to address the reality that many, many conversations now occur online and should be shielded from government surveillance, intelligence and civil liberties experts agree.”
Of course, civil libertarians’ see more threat while intelligence analysts see more opportunity. Sternstein notes the New America Foundation’s Open Technology Institute’s concern that “the document creates a carveout that does not respect the privacy of data ferried along international communications wires . . . .” On the other hand, she writes, “One intelligence community contractor says the policy reboot does a much better job at spelling out the dos and don’ts of siphoning Americans’ data from the internet.”
It’s still early in the public legal analysis of the update, and we won’t really understand the full implications of the changes until we see how the new rules have actually changed the nature of information that’s being collected.
