RESTRICTIONS ON ELECTRONIC SURVEILLANCE IN THE FOREIGN INTELLIGENCE FIELD

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79M00467A001100190008-2
• Release Decision: RIPPUB
• Original Classification: T
• Document Page Count: 14
• Document Creation Date: December 16, 2016
• Document Release Date: May 24, 2005
• Sequence Number: 8
• Publication Date: October 18, 1976
• Content Type: MF

Approved For
THE DIRECTOR OF CENTRAL INTELLIGENCE
WASHINGTON, D. C. 20505
I
Copy of 35 copies
18 October 1976
MEMORANDUM FOR: The Honorable Brent Scowcroft
Assistant to the President for
National Security Affairs
FROM: George Bush
SUBJECT: Restrictions on Electronic Surveillance
in the Foreign Intelligence Field
1. Your memorandum of 13 July 1976, subject as above,
requested that a thorough analysis be conducted by the
Intelligence Community of the impact of Executive Order
11905 and the detailed restrictions drawn up to implement
its provisions or the effective collection, dissemination
and use of foreign intelligence derived from electronic
intercept and surveillance techniques.
2. The attached report, prepared by the Intelligence
Community Staff in concert with representatives of all
affected agencies in the Community, details the impact on
signals intelligence collectors, analysts and consumers.
No problems were identified which would seriously impair
our present ability to produce meaningful foreign signals
intelligence on economic, political and military matters
of significant importance to the maintenance of national
security or the effective conduct of foreign policy, nor
which would impair our present ability to predict foreign
crises. There remain, however, several problem areas such
as in the collection and analysis of economic intelligence
and possibly on such subjects as intelligence related to
the transfer of advanced technology to potential adversaries.
3. The most serious of the remaining problems involve
SIGINT support to narcotics intelligence and protective
intelligence activities, as well as the general question
of intelligence support to law enforcement agencies. These
and lesser problems are detailed in the report and appro-
priate recommendations are provided.
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4. This report relates solely to existing directives
and guidelines for foreign intelligence-related SIGINT
operations and does not consider pending legislation in
the area of electronic surveillance within the United States,
which is the subject of a separate, ongoing review by the
Intelligence Community Staff.
5. Please also note that the study approaches the
problem from the intelligence viewpoint and does not
represent judgments as to the legal implications of the
recommendations. I believe that such judgments should
more appropriately be addressed by the NSC Staff with the
Justice Department.
6. I intend to charge the Intelligence Community
Staff with the responsibility of examining closely any
future changes that may be issued by the Attorney General
to his guidelines for the conduct of SIGINT operations
and to report to me any significant impacts on the collec-
tion, dissemination and use of foreign intelligence and
counterintelligence-related information.
Attachment:
As stated
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IMPACT OF EXECUTIVE ORDER 11905
AND IMPLEMENTING GUIDELINES
ON SIGNALS INTELLIGENCE ACTIVITIES
OF THE UNITED STATES
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PRECIS
1. This report was prepared by the Intelligence
Community Staff in response to a request from the Assistant
to the President for National Security Affairs.
2. The report examines the impact of Executive Order
11905, "United States Foreign Intelligence Activities,"
dated 18 February 1976, and the subsequent detailed restric-
tions issued up by the Attorney General to implement its
provisions on the effective collection, dissemination and
use of foreign intelligence-related information derived
from United States-signals intelligence operations.
3. The report is in terms of intelligence impact
alone. It reflects-the inputs of the intelligence elements
of the Departments of Defense, State and Treasury, the CIA,
the FBI, the Drug Enforcement Administration, the United
States Coast Guard, and the National Intelligence Officer
for Economics. Study participants are identified in
Annex G to the report.
4. No problems were identified with the Executive
Order or the Attorney General's current guidelines which
would seriously impair our ability to collect and disseminate
meaningful foreign intelligence-related SIGINT on economic,
political and military matters of significant importance to
the maintenance of national security or the effective conduct
of foreign policy, nor which would impair our ability to'
predict foreign crises. There remain, however, several
problem areas such as in the collection and analysis of
economic intelligence and possibly on such subjects as
intelligence related to the transfer of advanced technology
to potential adversaries.
6. A summary of significant problems is provided in
Section I of the report along with recommendations for
remedy; most of which involve the guidelines for the conduct
of signals intelligence operations issued by the Attorney
General.
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I. SUMMARY OF SIGNIFICANT PROBLEMS
AND RECOMMENDATIONS . . . . . . . . . . . . . . 1
II. THE EXECUTIVE ORDER . . . . . . . . . . . . . . . 7
III. THE ATTORNEY GENERAL'S GUIDELINES
AND NSA DIRECTIVES . . . . . . . . . . . . . . 10
IV. ORIGINAL GUIDELINES FOR SIGINT
ILC/NDC COLLECTION OPERATIONS. . . . . . . . 12
V. CURRENT GUIDELINES FOR SIGINT
ILC/NDC COLLECTION OPERATIONS. . . . . . . . . 15
VI. IMPACT ON ANALYSIS AND REPORTING . . . . . . . . 17
VII. OTHER CURRENT PROBLEMS . . . . . . . . . . . . . 21
VIII. THE SECRET SERVICE AND PROTECTIVE
INTELLIGENCE . . . . . . . . . . . . . . . . . 23
IX. THE DRUG ENFORCEMENT ADMINISTRATION
AND NARCOTICS INTELLIGENCE . . . . . . . . . . 27
X. LAW ENFORCEMENT SUPPORT . . . . . . . . . . . . . 29
XI. UNITED STATES COAST GUARD
INTELLIGENCE REQUIREMENTS. . . . . . . . . . . 31
XII. FOREIGN INTELLIGENCE OR COUNTERINTELLIGENCE-
RELATED ELECTRONIC SURVEILLANCE CONDUCTED
BY THE FBI . . . . . . . . . . . . . . . . . . 32
XIII. CURRENT U.S. LAWS AND COURT ACTIONS
AFFECTING PROVISION OF INTELLIGENCE
INFORMATION . . . . . . . . . . . . . . . . . . 36
XIV. TRAINING OF PERSONNEL . . . . . . . . . . . . . . 40
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A. Section 5 of E.O. 11905
B. August 1976 Revisions to USSID-18 and Annex B Thereto
C. SIGINT Test and Evaluation Activities
D. The Executive Protective Service and Protective Intelligence
E. Provision of Foreign Intelligence Information to Law
Enforcement Agencies
F. U.S. Coast Guard Intelligence Needs
G. E.O. 11905 Study Points of Contact
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I. SUMMARY OF SIGNIFICANT PROBLEMS AND RECOMMENDATIONS
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1. The Attorney General's guidelines for the conduct
of SIGINT operations are a listing of procedures to enable the
lawful conduct of important signals intelligence activities.
While in several areas they are essentially quite binding, in a
few significant areas they tend to be less restrictive than the
6t eiwise 'sweeping general 'restrictions of E .O. 11905. In general, however,
the guidelines on the whole have a significant restrictive.
impact on various aspects of SIGINT production operations.
2. Significant problems include:
a. The categorization of strictly foreign
intelligence signals intercept operations under
the general heading of "electronic surveillance."
This has the effect of placing SIGINT operations
under the same severe strictures and control
procedures as are applied to other more extraor-
dinary and classic electronic penetration or
eavesdropping activities. (See Section II.)
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c. In certain instances, such as in the
determination of what SIGINT computer selection
terms pertaining to United States persons may
or may not be used, the current guidelines vest
in the Attorney General the responsibility for
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personally determining in each case if the
information being sought constitutes significant
foreign intelligence and that such information
cannot be obtained by means other than "electronic
surveillance." (See Section IV.)
d. The detailed Attorney General guidelines
for SIGINT ILC/NDC operations contain particularly
strict rules against revelation of the identities
of "United States persons" noted in foreign
communications and against the maintaining of
computer selection terms using such names. This
impedes reporting and data base maintenance, and
creates administrative accountability burdens
for SIGINT collectors. (See Sections IV and V.)
e. The Attorney General's expanded defini-
tion of "United States persons," to include "any
other alien known to be presently in the United
States," greatly enlarges the scope of "electronic
surveillance" restrictions and impacts in several
areas; not the least of these is the basic problem
of how to determine who is or is not an alien
person or entity for the purposes of foreign
intelligence. (See Sections IV, V and VIII.)
f. The current guidelines permit the
identification in SIGINT reports of U.S. Government
officials by name. NSA, however, has opted to
restrict such reporting to the identification-of
such officials only by title. This was done
because of the concern that the use of names
will cause serious problems stemming from the
provisions of the Privacy Act and the Freedom
of Information Act. (See Sections V. VI, and
XIII.)
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h. There are restrictions on the authority
of SIGINT producers to collect and provide to
the Secret Service certain SIGINT information
relative to United States persons who are reason-
ably believed to constitute a potential threat
to protectees. This raises serious questions in
a most important national security area. (See
Section VIII.)
i. There is, in the Executive Order and
the Attorney General's guidelines, a sense of,
prohibition against cooperation between foreign
intelligence agencies and law enforcement
agencies which precludes fully effective foreign
intelligence support to law enforcement activities.
This is especially true in the narcotics area
(which itself tends to fall outside the scope
of defined "foreign intelligence") and affects
most severely SIGINT support to DEA, Treasury/
Customs and the Coast Guard. (See Sections IX,
X and XI.)
j. Current U.S. laws and court actions,
essentially the Privacy and Freedom of Information
Acts and motions for disclosure claiming "electronic
surveillance," tend to threaten the revelation of
sensitive SIGINT sources and methods. This is
caused by the absence of any general exemption
for signals intelligence information and strict
enjoinder against its use for evidentiary or .
prosecutive purposes in U.S. civil or criminal
cases. (See Section XIII.)
k. Finally, there is no formal guidance
relative to the conduct of "live" signals inter-
cept training within the United States, similar
to the existing procedures for the conduct of
SIGINT Test and Evaluation activities. (See
Section XIV.)
3. It is recommended that steps be taken to:
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b. Clarify the relationship of foreign intel-
ligence agencies with those law enforcement agencies
which also have an international or non-law enforce-
ment responsibility requiring access to foreign
intelligence, under circumstances ensuring that any
foreign intelligence provided will not be used in
the law enforcement functions of such agencies.
(See Sections I and XIII.)
c. Approve the release to the DEA and Treasury/
Customs of foreign intelligence SIGINT information
of a strategic. nature, i.e., that SIGINT directly
related to international narcotics trafficking and
other nation's policies toward illicit drug suppression.
(See Section IX.)
d. Favorably consider the foreign intelligence-
related information needs of the United States Coast
Guard relative to the international activities of
political dissidents operating from the United
States against other countries and to the activities
of international drug traffickers. (See Section XI.)
e. Review the feasibility of categorizing or
maintaining signals intelligence information derived
from foreign intelligence collection operations and
entered into a data base in such a way as to be
excepted, properly classified and essential national
security records not within the meaning of a "system
of records" under the Privacy Act. (See Section V.)
f. Review the feasibility of exempting signals
intelligence information from the scope of the
Freedom of Information Act and enabling negative
responses to information requests or motions for
discovery of "electronic surveillance" data on the
grounds that such SIGINT is properly classified
and essential national security information not
used for evidentiary or prosecutive purposes. (See
Section XIII.)
g. Where the approval of the Attorney General
is required for certain SIGINT operations related
to U.S. persons, the certifications of designated
senior officials of United States foreign agencies
that the information to be collected is important
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to the national security and not feasibly
obtainable by other means should be accepted.
The present procedures require personal Attorney
General determination on those points. (See
Sections IV and V.)
h. At least for the purpose of foreign
intelligence SIGINT operations, restrict the
definition of U.S. persons, as it relates to
individuals, to U.S. citizens and aliens law-
fully admitted for permanent residence. (See
Sections IV and V.)
i. Authorize SIGINT producers to maintain
their own records to aid in the identity of "U.S..
persons" (individuals and corporate entities)
for collection avoidance purposes only. (See
Section V.)
j. Relieve SIGINT producers from the
burden of detailed tabulation and reporting of
the identification by title (vice names) of U.S.
officials released in SIGINT product reports.
(See Section V.)
k. In all cases where identification con-
tributes to the foreign intelligence content of
a report or translation, authorize SIGINT producers,
exempt from Privacy Act or Freedom of Information
Act provisions, to publish the names of United
States Government officials noted in intercepted
messages. (See Sections V and XIII.)
in. Allow the use of selection terms and
names which will enable NSA to intercept and
disseminate only to the Secret Service SIGINT
information relevant to protective intelligence
threat criteria on "U.S. persons" who are reasonably
believed by the Service, and endorsed by the Attorney
General, to present a danger to the safety of a
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statutory protectee of the U.S. Secret Service.
(Note: This recommendation also assumes that
recommendations e. and f. above are approved
and acted upon.) (See Section VIII.)
n. The Treasury Department recommends
that the provisions of Section 5(b)(7)(v) of
Executive Order 11905 (relative to domestic
information "however acquired" on U.S. persons)
be amended or that an exception thereto be
promulgated to permit all foreign intelligence
agencies to collect and report to the Secret
Service any information evidencing or concerning
a possible threat to a statutory protectee of
that Service whether or not it concerns the
domestic activities of U.S. persons. (This
recommendation relates to the preceeding
recommendation m. but goes beyond the SIGINT
("electronic surveillance") area.) (See Section
VIII.)
o. Authorize U.S. federal law enforcement
agencies to disseminate to another agency infor-
mation derived from all authorized sources
(including electronic surveillance) if that
information relates to the federal law enforce-
ment functions of the recipient. (See Sections
IX, X, and XI.)
p. Promulgate guidance relative to the
conduct of "live" signals intercept training
conducted within the United States. (See Section
XIV.)
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