Former State Department Exec Calls E.O. 12333 a “Legal Loophole” for Spying on Americans

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Rainey Reitman
Electronic Frontier Foundation

“What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?”

That’s the question John Napier Tye, a former State Department section chief for Internet freedom, calls on the government to answer in his powerful op-ed published today by the Washington Post. In it, Tye calls the NSA’s surveillance operations abroad, conducted under Executive Order 12333, a threat to American democracy, stating that this power “authorizes collection of the content of communications, not just metadata, even for U.S. persons.”

Executive Order 12333, signed by President Ronald Reagan on December 4, 1981, established rough guidelines for intelligence community activities taken abroad, including the collection of signals intelligence for surveillance purposes.

Although we’ve previously sounded the alarm about government surveillance under E.O. 12333, it received increased public attention in October 2013, when a classified slide provided to the Washington Post by former NSA contractor Edward Snowden diagramed how the NSA tapped the main communication links of Yahoo and Google data centers around the world. The Washington Post pointed to the authority granted to the NSA under Executive Order 12333, quoting former NSA chief analyst John Schindler who said, “Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and maximize collection by exploiting every loophole. It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA [the Foreign Intelligence Surveillance Act].”

Tye bolstered this view in his op-ed, noting that the chairman of the Senate Select Committee on Intelligence herself did not believe that Congressional oversight of 12333 authorities was sufficient. Tye points out that the current architecture of many Internet services results in digital communications traveling or being stored beyond US borders – and that this data can then be collected by the NSA without court approval or a report to Congress.

Tye questions the constitutionality of this level of data collection, stating: “I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing.”

Tye also notes that data collection under E.O. 12333 was of deep concern to the president’s Review Group on Intelligence and Communication Technologies, which addressed the matter as part of Recommendation 12 in its report:

Recommendation 12 urges that all data of U.S. persons incidentally collected under such authorities be immediately purged unless it has foreign intelligence value or is necessary to prevent serious harm. The review group further recommended that a U.S. person’s incidentally collected data never be used in criminal proceedings against that person, and that the government refrain from searching communications by U.S. persons unless it obtains a warrant or unless such searching is necessary to prevent serious harm.

The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees.

In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.

All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.”

Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans should dig deeper. (emphasis added)

The op-ed concludes with the same question Senator Ron Wyden asked Director of National Intelligence James Clapper years ago, and that we’ve been asking for years: what kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

It’s time for the NSA and the Obama Administration to give the American public an honest answer.
Read the entire article here.

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