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New executive order on intercepting electronic communications
RICHARD WEINER
Technology for Lawyers
Published: December 16, 2022
It’s either a matter of conjecture, fact or paranoia that the government is either listening in on your electronic communications or, at the very least, it has that capability.
For everyone—in or out of this country. Ed Snowden and numerous movies have told you so.
Perhaps in an attempt to lessen the negative aspects of electronic (or “signal”) gathering by the government in the perception of both our citizenry and the privacy folks at the European Union, President Biden recently signed an executive order (EO) that tries to clarify when and how signals can be intercepted and when they cannot.
In general, the EO looks to enhance safeguards and oversight of US signals interceptions; introduce a new redress system for affected individuals; introduce new internal processes for agency signals interceptions; and update the basic privacy principles to align with the Framework.
This EO has the force of law in the US, and the intent is to apply it to communications outside the US as well—in particular, in an attempt to satisfy the EU’s stringent privacy requirements.
In terms of the latter, the EO is seeking to align US actions to implement the US commitments under the EU-US Privacy Framework, and this EO lays out steps that the US is expected to take to implement the US side of this agreement.
It looks like an apologia of sorts, along with an action plan to restore the US’s commitment to rebuild the legal framework for signals intercepts.
Overall, the EO is an attempt to make sure that signals intelligence only takes place within the joint frameworks of the Constitution, EU privacy needs, and legitimate intelligence gathering necessities(which is defined at length in the EO).
I gotta say, though, reading through this very lengthy document, that it may not be the privacy panacea everyone wants it to be. Well, everyone outside of the intelligence community, that is.
Will the EO curtail excesses and abuses in signals interception by the intelligence community? It’s all a secret, so none of us will ever know.
The entire (again, lengthy) EO is here, if you want to read it: https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/07/executive-order-on-enhancing-safeguards-for-united-states-signals-intelligence-activities/