National security imperatives require thorough intelligence gathering to inform policymakers and protect the populace from threats such as terrorism, cyberattacks, and other adversaries. However, intelligence activities raise ethical dilemmas regarding civil liberties, privacy, harm avoidance, and moral conduct. While intelligence is needed to safeguard the public, the methods and oversight of intelligence agencies must incorporate ethical principles to avoid undermining liberties while trying to defend them. Understanding opportunities enabled by technological advances and the ethical challenges posed is crucial.
Principle 1 – Necessity and proportionality
The range of threats facing the nation, whether from terrorism, cyber-attacks on critical infrastructure, or the actions of adversarial national powers, means that thorough intelligence gathering is essential to inform policymakers and protect the populace. Broad surveillance efforts, undercover infiltration of groups, and monitoring of communications may sometimes uncover plots and prevent attacks (Blanchard & Taddeo, 2023). However, such far-reaching intelligence measures inevitably impinge substantially on civil liberties and personal privacy. Sweeping surveillance of the general public, most of whom are innocent ordinary citizens not involved in any threat, represents an extraordinarily intrusive overreach into their private lives and an erosion of liberty.
As the book of Romans counsels, government authorities have a legitimate function in society but must not overstep their bounds and responsibilities (English Standard Version Bible, 2001, Rom. 13:1-5). This biblical guidance reinforces that intelligence activities should stay within legitimate and proportional national security needs. A wise ethical policy would demand that less intrusive options proportionate to the threat must always be considered first in intelligence activities. More selective and narrowly targeted intelligence collection focused only on specific individuals or groups suspected, based on reasonable evidence, of involvement in threats is a less invasive approach that could fulfill needs while protecting rights.
Suppose an extremely grave imminent threat may require broader surveillance to uncover. In that case, there should be robust mechanisms to protect the data and anonymity of innocent civilians inadvertently caught up in the monitoring. Likewise, undercover operatives should be given obvious guidelines and boundaries to steer their activities toward lawful and proportional means of deterring violence rather than being drawn into immoral excesses (Department of Homeland Security, 2022). Standards and limits are needed to guide intelligence agents and remind them of proportional methods.
The risks and benefits of different intelligence methods must be rigorously weighed against the specific threat environment at hand. The minimum intelligence collection and analysis needed to maintain reasonable security and safety should be pursued to avoid unnecessary overreach (Department of Homeland Security, 2022). With oversight and accountability, liberty can be primarily preserved even as core intelligence gathering on the most severe threats continues. Necessity does not automatically justify unlimited intrusiveness on freedoms.
Principle 2 – Least harm
The ethical principle of minimizing harm should be a guiding light for intelligence agencies. In particular, the least damage to individuals and society should be prioritized when considering and carrying out intelligence activities (Blanchard & Taddeo, 2023). Careful analysis of potential unintended consequences and collateral damage is required to minimize harm.
Intelligence collection, by necessity, involves a certain amount of unavoidable harm. Surveillance in public spaces impinges somewhat on privacy. Intercepting communications, even foreign ones, infringe on confidentiality (Blanchard & Taddeo, 2023). Undercover operatives may feel psychological tolls from deception. However, these harms can be mitigated through scrupulous adherence to the least harm.
Surveillance in public should utilize minimum needed monitoring, avoiding blanket saturation of public spaces with cameras and wiretaps. Watching only locations of concern for limited periods is less harmful than omnipresent surveillance (Blanchard & Taddeo, 2023). Likewise, intercepting communications should be narrowly targeted at probable threat actors based on specific warrants. Mass indiscriminate collection tramples privacy for all.
Undercover operatives should be limited to infiltrating hazardous organizations with little alternative to gain insight. They should be under close supervision to avoid mental health strains and slipping into unethical behavior (Blanchard & Taddeo, 2023). Other voluntary sources could provide intelligence on less threatening groups.
Beyond direct harm, unintended second-order effects multiply the collateral damage. Sweeping surveillance undermines public trust in government, especially among minority communities (Blanchard & Taddeo, 2023). This breakdown in trust damages the security cooperation needed for community policing against hate crimes, for example. It also reduces faith in American ideals like checks on government power.
Likewise, if cyber hacking tools created for intelligence gathering in authoritarian states leak out, they could enable repression by dictators. Compromising device privacy protections could open backdoors for criminals to exploit regular consumers (Department of Homeland Security, 2022). Each operation must be evaluated for slippery slope dangers.
Harm minimization means intelligence professionals staying rooted in ethics. In analysis, conclusions should be double-checked to avoid cognitive biases impacting marginalized groups and cultures (Department of Homeland Security, 2022). Categorization as threats should require high certainty.
Ethics training is critical to avoiding unintended harm through sloppy practice. Classes must go beyond legal compliance to consider the spirit of least harm. Analysts and agents alike require founding in philosophical ethics and self-reflection on their biases. Ethics must be integrated into organizational culture.
Harm avoidance also means recognizing threats that stem from environmental destruction, inequality, poor governance, and mental illness. Only addressing symptoms through intelligence fails to deal with root causes that often perpetuate cycles of violence (Department of Homeland Security, 2022). Holistic approaches get at sources.
Of course, harm minimization cannot interfere excessively with legitimate intelligence gathering. However, it provides a valuable framework emphasizing restraint, checks against abuse, and consideration of indirect effects (Department of Homeland Security, 2022). With diligence and wisdom, harm can be substantially mitigated beyond the minimum unavoidable infringements needed for security.
The greatest challenge is that perceptions of harm are subjective and shaped by culture. Different groups have varying sensitivities and historical experiences (Department of Homeland Security, 2022). Consulting diverse voices is thus crucial to minimize unintended harm. What seems harmless to some may deeply wound others.
Harm minimization requires context-specific judgment, not mechanistic rules. The particulars of each case determine appropriate limits on intelligence methods (Department of Homeland Security, 2022). There are rarely easy choices between security and ethics. With scrutiny and nuance, least harm provides guidance, not prescription.
Principle 3 – Oversight and accountability
Effective oversight and accountability ensure intelligence agencies act ethically and legally. Intelligence activities inherently involve high levels of secrecy, which creates risks of overreach and abuse of powers if left unchecked (Miller et al., 2022). Oversight provides crucially needed transparency into intelligence programs to identify concerning activities. Accountability provides consequences for violations of laws and ethics, which motivates compliance and integrity.
Robust oversight involves monitoring and reviewing intelligence practices and operations by entities outside of the intelligence organizations themselves, especially by democratically elected representatives acting on citizens’ behalf. Legislative oversight by elected officials serving on Congressional intelligence committees enables regular review of intelligence agencies and analysis of broad programs and specific controversial operations. This oversight can identify activities that improperly infringe on civil liberties or other rights (Miller et al., 2022). For this oversight to be meaningful, committee members must have security clearances to access full operational details, not just public summaries.
Likewise, judicial oversight consists of courts scrutinizing warrants requested by intelligence agencies to authorize intrusive surveillance and monitoring programs before allowing them to proceed. Judges serve as independent arbiters between government investigative powers and citizen freedoms. They balance security needs and rights protections (Miller et al., 2022). Rigorous judicial review of evidence and precedents prevents intelligence agencies from undertaking unchecked intrusions without demonstrated need.
Additional oversight comes through independent governmental watchdogs monitoring civil liberties and privacy abuses. Entities like Offices of Inspectors General and Privacy and Civil Liberties Oversight Boards are mandated to analyze intelligence activities for potential rights violations continuously. Though appointed by the executive branch, they maintain independence to critique programs publicly.
Furthermore, expert advisory groups can provide informed oversight by giving recommendations based on being granted insider access. For example, the President’s Intelligence Advisory Board comprises diverse legal, national security, technical, civil liberties, and ethics experts. Board members confidentially review intelligence policies and programs based on classified briefings from agency leaders (Miller et al., 2022). Their recommendations carry weight and aim to spotlight issues needing reform.
A key enabler of oversight is that overseers must have full access to details of intelligence operations and programs to assess the scope, justification, and impacts appropriately. All too often, intelligence agencies resist demands for information by claiming it is too sensitive and would compromise sources. But without sufficient access to programs, overseers cannot conduct meaningful monitoring of abuses (Miller et al., 2022). Overseers selected for bodies like the Congressional Intelligence Committees must have security clearances at levels enabling access to all compartmentalized activities.
Effective oversight also depends significantly on having diverse backgrounds represented in oversight bodies. Legal experts provide a crucial understanding of whether activities comply with laws. Civil libertarians advocate for rights protections. Technical specialists assess surveillance methods. Ethicists consider the moral implications of programs. A diversity of political affiliations, religions, races, and geographic regions counter insular groupthink by inserting various perspectives into evaluations (Miller et al., 2022). Checks performed by individuals of similar views could skew oversight towards the interests of that subset rather than the broader populace.
Likewise, meaningful oversight requires facilitating and listening to whistleblowers who take personal risks to expose abuses of power occurring under the radar. Legal and institutional protections for whistleblowers who report wrongdoing through proper internal channels incentivize those individuals on the inside with direct knowledge to come forward without fear of reprisal or professional ruin (Bircan & Salah, 2022). Anonymized and secure tip lines must be made available to encourage disclosures that could uncover negligence, overreach, or constitutional violations.
Oversight works most effectively as continuous monitoring of programs and activities, not just as periodic ad hoc investigations after major public scandals have already erupted. Regular reviews of agencies and operations by multiple overseers coming at the issues from different vantage points and motivations make true accountability constant and institutionalized, rather than mere episodic exercise (de Almeida et al., 2021). Routinized embedded oversight is far more impactful at shaping the ongoing institutional culture of intelligence agencies than isolated crisis-driven inquiries.
Oversight mechanisms themselves also require a certain degree of oversight. “Meta-oversight” of overseers by other parties reduces the risks of complacency or overseers becoming captive to the entities they monitor. Periodic Government Accountability Office reviews assessing the overall state of oversight across intelligence entities could provide this beneficial layer of validation (Tzimas & Demetriadis, 2021). Such meta-oversight closes loopholes in the oversight ecosystem.
Accountability is an essential complement to oversight, moving beyond just monitoring intelligence activities to imposing punitive consequences on confirmed wrongdoing. This motivates compliance with laws and ethics far more powerfully than oversight alone. Internal accountability manifests through intelligence agencies policing their personnel when abuses are uncovered. Disciplinary actions, termination of employment, and requirements for retraining of staff involved constitute initial accountability and prevent those individuals from repeating violations (Blanchard & Taddeo, 2023). Robust and empowered inspector generals embedded within agencies crucially support rigorous internal accountability.
However, internal accountability has inherent limitations due to institutional loyalties and conflicts of interest shielding the broader organization. Thus, external criminal accountability conducted by the Department of Justice prosecuting intelligence personnel for criminal violations uncovered by oversight is vital for credible deterrence (Blanchard & Taddeo, 2023). The federal court system provides independent legal adjudication of charges against individuals based on the law, unaffected by organizational affiliations. The prospect of prosecution, fines, loss of security clearances, and even imprisonment incentivizes far greater restraint and respect for rules.
Financial accountability can also be imposed through Congressional budgetary powers and financial penalties for agencies found complicit in violations. Congress reducing budgets, imposing restrictions on the use of funds, and levying fines on agencies create powerful financial pressures to avoid abuses beyond mere reputational criticism. Economic costs and impacts on missions get the immediate attention of agency leaders in ways that verbal reprimands do not.
Public accountability arises through sustained investigative media coverage, vocal public criticism, and pressures imposed on agencies and leaders responsible for violations, negligence, and scandals. Widespread public outcry and plummeting faith in institutions among citizens and allies abroad is a harsh but often necessary blow to spur authentic self-examination and reforms when severe abuses are exposed (Blanchard & Taddeo, 2023). The power of transparency and free expression enables public accountability through outrage that highlights the disconnect between principles and actions.
Genuine accountability requires transparency, with intelligence agencies rapidly acknowledging and explaining any discovered unlawful activities and violations rather than reflexively covering them up. Classifying all internal misconduct as secret in the name of national security precludes meaningful public accountability (Blanchard & Taddeo, 2023). Maximum appropriate disclosure of violations to oversight bodies and the public is essential, even when embarrassing to the organization and its leaders’ reputations.
Where harm is done to innocent people due to intelligence community violations or failures, full public acknowledgment of responsibility and transparency about victims is vital for accountability. In addition to admissions, accountable redress for those wronged or victimized requires financial compensation, assistance in recovering, and personal apologies (Blanchard & Taddeo, 2023). Rather than concerning itself with managing publicity, proper accountability involves making full amends to those fellow citizens harmed by breaches of trust.
Technological Issue – Encryption
The increasing ubiquity of robust encryption in digital technologies, services, and devices poses significant challenges for intelligence agencies in gathering signals intelligence. Encryption protects the privacy and security of lawful users but can prevent access to the content of communications by authorities conducting legally sanctioned surveillance. This creates a complex ethical tension between individual privacy rights and national security imperatives (Department of Homeland Security, 2022). There are no easy solutions, but the ethical implications of restrictions on public access to encryption require careful examination.
Powerful encryption methods are vital for securing the digital economy and personal information against criminal hacking and fraud. Encryption enables e-commerce, online banking, communications, and data storage services that society increasingly relies upon by protecting user data and transactions (Department of Homeland Security, 2022). Technologically, it is a form of code scrambling that makes digital information unintelligible to unauthorized parties. Widespread use of encryption is in the public interest.
However, encryption also allows criminals and terrorists to hide their activities and plots from authorities. End-to-end encryption ensures only the sender and recipient can decrypt messages, preventing interception. Banning effective public encryption would be infeasible and make lawful online activities insecure (Department of Homeland Security, 2022). But unfettered encryption hampers legitimate national security investigations even when authorized by warrant. This endangers public safety, while restrictions could undermine privacy and trust.
One approach would be legally mandating that technology companies provide law enforcement access to encrypted systems when compelled by warrant. However, introducing deliberate vulnerabilities raises significant security risks and ethical dilemmas. Encryption systems with special backdoors for authorities would be targets for hackers (Department of Homeland Security, 2022). And trusting private companies with sensitive access could lead to abuse absent strong oversight.
The ethical implications would also be troubling. Mandating backdoors treats all users as suspicious until proven otherwise. The forced compliance of companies with access requests could undermine user trust and the innovative spirit of the technology sector (Department of Homeland Security, 2022). Public-private cooperation, while essential, should not wholly subordinate private interests to state power in a democracy. Backdoor mandates should face heavy skepticism.
A different approach is narrower compelled access in specific cases rather than systemic backdoors. Authorities could demand tech companies use legal and technical means to unlock a particular user’s device or account for an investigation. The UK and Australia have adopted this tactic. It raises fewer systemic security issues.
The ethical test for compelled access would show probable cause that the target is involved in severe criminality or national security threats, with no other way to obtain the information. Fishing expeditions would be unethical (Department of Homeland Security, 2022). Americans have traditionally had special sensitivities regarding privacy rights and mistrust of state power for good historical reasons. Courts would need to apply strict scrutiny over any compelled access.
A better but challenging path is enhancing non-technical means for authorities to gather intelligence on advanced threats even when encryption is used. Better analysis of metadata not hidden by encryption can help profile suspected terrorists and foreign intelligence operatives through patterns (Department of Homeland Security, 2022). And human intelligence sources would still provide insight into their plans and intentions.
Likewise, greater international collaboration and intelligence sharing between trusted allies could assist investigations by pooling data and leads. Coalition-building helps compensate for gaps created by encryption (Department of Homeland Security, 2022). This avoids the civil liberties pitfalls of restricting encryption domestically.
Technical solutions like encryption escrow, where a neutral third party holds users’ unique keys securely, may one day provide a balance between privacy and access, assuming watertight security from hacking. Advances in quantum computing may eventually enable rapid decryption without compromising overall encryption strength, though this possibility is speculative.
Conclusion
Intelligence activities operate in a space fraught with ethical complexities arising from the inherent tensions between security and liberty. As such, establishing clear principles for ethical intelligence, such as necessity, proportionality, harm avoidance, and stringent oversight, is essential. All methods should be carefully weighed against moral thresholds – freedom should not be an afterthought in fighting for freedom. Likewise, evolving technological issues highlight difficult tradeoffs between privacy and access that require nuanced debate to find a reasonable balance. Ethics must be ingrained in the institutional culture of intelligence agencies. During times of threats, upholding principles reveals our true moral purpose.
References
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Blanchard, A., & Taddeo, M. (2023). The Ethics of Artificial Intelligence for Intelligence Analysis: Review the Key Challenges with Recommendations. Digital Society, 2(1), 12. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10073779/
de Almeida, P. G. R., dos Santos, C. D., & Farias, J. S. (2021). Artificial intelligence regulation: a framework for governance. Ethics and Information Technology, 23(3), 505-525. https://sci-hub.se/https://doi.org/10.1007/s10676-021-09593-z
Department of Homeland Security. (2022). Ethical Frameworks in Open Source Intelligence. Department of Homeland Security. https://www.dhs.gov/sites/default/files/2022-09/Ethical%20Frameworks%20in%20OSINT%20Final.pdf
English Standard Version Bible. (2001). ESV Online. https://esv.literalword.com/
Miller, S., Regan, M., & Walsh, P. F. (2022). National security intelligence and ethics (p. 336). Taylor & Francis. https://library.oapen.org/bitstream/handle/20.500.12657/51191/9781000504422.pdf?sequence=1&isAllowed=y
Tzimas, D., & Demetriadis, S. (2021). Ethical issues in learning analytics: a review of the field. Educational Technology Research and Development, 69, 1101-1133. https://sci-hub.se/https://doi.org/10.1007/s11423-021-09977-4
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