There is growing confusion surrounding the legal definition of Open Source Intelligence (OSINT) and its applicability to Army intelligence operations.  The Army currently defines OSINT as:

Intelligence that is produced from publicly available information and is collected, exploited, and disseminated in a timely manner to an appropriate audience for the purpose of addressing a specific intelligence requirement. [i] 

The crux of the issue is that this definition may suggest that any soldier who generates intelligence from publicly available information (PAI) is conducting OSINT.

This definition first appeared in the 2006 National Defense Authorization Act[ii] and was later amended to Title 50 of the U.S. Code.[iii]   Many interpret the definition’s presence in U.S. Code as a legally binding mandate.  The intent of the public law, however, was to prompt the Secretary of Defense to develop a strategic framework for, “integrating OSINT into the Defense intelligence process.” [iv]  Congressional findings are considered prefatory—they provide context but do not carry independent legal force. [v]  The definition of OSINT appears in the law only as a “congressional finding” which provided context leading into the legally binding text.  According to the Library of Congress:

Like other prefatory text, congressional findings generally do not have independent legal effect or ‘override the plain meaning of specific provisions—regardless of whether they are included in the bill itself or in the legislative record.’[vi]

Courts have consistently held that congressional findings cannot override statutory language or constrain agency discretion.[vii]

While the Department of Defense and the Army have adopted this definition by reference, it is not prescriptive.  Services—and all department and agencies within the DoD—retain the authority to define OSINT to meet their own operational and policy needs.

The core challenge with relying solely on the public law definition is that it implies any individual generating intelligence from publicly available information (PAI) is conducting OSINT.  This dilutes the professional and doctrinal standards we apply within Army Intelligence. True OSINT, as we practice it, is not just about access to PAI—it is about intent, rigor, vetting, and integration within a validated intelligence process.

We need to reconsider the definition of OSINT such that it maintains its analytical integrity and mission alignment within the Army context.

[i] Army Directive 2016-37 (Open Source Intelligence Activities)

[ii] Pub. L. 109–163, div. A, title IX, §931, Jan. 6, 2006, 119 Stat. 3411.

[iii] 50 U.S.C. § 403-5

[iv] Pub. L. 109–163, div. A, title IX, §931, Jan. 6, 2006, 119 Stat. 3411.

[v] see Reeves v. Astrue, 526 F.3d 732 (11th Cir. 2008). “ (stating that Congress’s general statements of findings and purpose cannot override the plain meaning of specific provisions of a Congressional Act); Samuels v. District of Columbia, 650 F.Supp. 482 (D.D.C.1986) (holding that the preamble to a Congressional Act is merely a general statement of policy which does not override the specific requirements in the body of the statute).

[vi] Congressional Research Service Report R46484, “Understanding Federal Legislation: A Section-by-Section Guide to Key Legal Considerations, version 11, May 19, 2022 (“Preambles typically express nonbinding legislative findings and “value judgments.”129 As such, they do not include “the operative words of the law”—that is, they do not, by themselves, create legal rights or duties.”).

[vii] See United States v. Morrison, 529 U.S. 598 (2000).