OSINT Legal and Ethical Considerations
When using open-source data, including commercially available information (CAI), privacy and civil liberties are among the most significant legal and ethical challenges facing intelligence professionals. In simple terms, just because information is publicly available does not mean intelligence practitioners can use it however they want. As the Intelligence Community Policy Framework for Commercially Available Information explains, some commercially available datasets can reveal sensitive personal information, patterns of life, political opinions, religious beliefs, financial information, and other activities whose disclosure could result in substantial harm, embarrassment, inconvenience, or unfairness to individuals.
The responsible and ethical use of open-source information therefore affects every stage of the intelligence process. Before accessing or collecting sensitive CAI, agencies must determine whether the intelligence value of the information outweighs any privacy, civil liberties, security, and data-quality risks that cannot reasonably be mitigated. During the collection stage, agencies must assess privacy risks, civil liberties concerns, and the sensitivity of the data being acquired. They must also determine whether privacy-enhancing techniques can be used to reduce those risks while still meeting intelligence requirements.
Privacy concerns continue throughout the processing and analysis stages. Agencies may implement measures such as anonymization, filtering, information masking, data minimization, and access controls to ensure sensitive information is handled appropriately. When querying and exploiting sensitive CAI, the number of personnel authorized to conduct searches may be limited, written justifications may be required, and certain searches involving U.S. person information may require senior-level approval.
Privacy and civil liberties concerns also affect the dissemination of intelligence products. Information derived from open sources must be handled in accordance with safeguards designed to protect individual rights and prevent unnecessary disclosure of sensitive information. Depending on the circumstances, dissemination may require higher-level approval, legal review, or additional oversight before information concerning U.S. persons can be shared.
Beyond legal requirements, OSINT professionals must also consider the ethical implications of using information obtained from social media. Given that social media has become a major source of information for both public and private investigations, analysts should consider the reasonable expectations of the individuals generating that information. Content posted online may be publicly accessible, yet users may not expect their comments, photographs, or online interactions to be systematically collected, analyzed, and incorporated into intelligence products (Townsend and Wallace 2016).
In this context, preserving anonymity to the greatest extent possible becomes especially important. Preserving anonymity involves more than simply removing names. Even without names, social media content can often be traced back to the original user through search engines, screenshots, or contextual details. The risk becomes particularly serious when the individuals involved live under authoritarian governments. Intelligence products that identify or expose such individuals may contribute to arrest, intimidation, professional consequences, or other forms of retaliation if adequate safeguards are not taken to protect their identities. As a result, intelligence professionals should think beyond what is legally permissible and consider whether the way they collect, analyze, and disseminate information could expose individuals to unnecessary risk.
In my opinion, OSINT remains a valuable intelligence discipline because of the breadth and accessibility of the information available to analysts. However, the value of OSINT should not come at the expense of privacy, civil liberties, or the safety of the individuals whose information is being used.
References:
Office of the Director of National Intelligence. 2024. Intelligence Community Policy Framework for Commercially Available Information. Washington, DC: Office of the Director of National Intelligence.
Townsend, Leanne, and Claire Wallace. 2016. Social Media Research: A Guide to Ethics. Aberdeen: University of Aberdeen.