Put simply, the exploitation of vulnerabilities is the core of intelligence. The panel’s recommendation is akin to arguing that if one discovered a highly placed official of a foreign government with a drinking and gambling problem, then rather than attempting to exploit that problem, the intelligence community should guide him into rehab. Certainly, if a Zero Day or other system vulnerability affects sensitive U.S. government systems, then the NSA should act to repair it, but a general policy of non-exploitation needlessly handicaps the intelligence community. It flies in the face of the sort of careful analysis of costs and benefits that the review group’s report calls for in other circumstances.
The root of these flaws in the report is the failure to distinguish between domestic law enforcement and foreign intelligence. Law enforcement, by definition, is meant to uphold the Constitution and protect the civil liberties of U.S. citizens. Policemen and prosecutors must obey strict guidelines on how they conduct surveillance on suspects and what kind of evidence they can use in court. Foreign intelligence, on the other hand, operates by breaking other countries’ laws. Human intelligence organizations like the CIA try to convince foreign nationals to pass secrets to the United States. And signals intelligence organizations like the NSA consciously and deliberately steal private communications abroad without the target individuals’ knowledge or consent.
The review group, however, recommends that the same criteria be used to determine when the government can collect information about U.S. citizens and foreign individuals on the grounds of protecting rights. In addition to recommending extending the Privacy Act to non-U.S. persons, it declares that intelligence agencies “must not target any non-United States person solely on that person’s political views or religious convictions.” While this is obviously crucial in terms of safeguarding the civil liberties of U.S. citizens, it makes no sense in the world of foreign intelligence. Intelligence agencies always collect information on foreign individuals because of their political views and other beliefs. Why else would they care about particular people, if not for the way they see and interact with the world?