EO 12333 Threatens Our Democracy

Among the many posts I’ve written about Executive Order 12333 — the order that authorizes all non-domestic spying — includes this post, where I noted that proposed changes to NSA’s phone dragnet won’t affect programs authorized by EO 12333.

Obama was speaking only about NSA’s treatment of Section 215 metadata, not the data — which includes a great amount of US person data — collected under Executive Order 12333.

[snip]

Section 215 metadata has different and significantly higher protections than EO 12333 phone metadata because of specific minimization procedures imposed by the FISC (arguably, the program doesn’t even meet the minimization procedure requirements mandated by the law). We’ve seen the implications of that, for example, when the NSA responded to being caught watch-listing 3,000 US persons without extending First Amendment protection not by stopping that tracking, but simply cutting off the watch-list’s ability to draw on Section 215 data.

Basically, the way NSA treats data collected under FISC-overseen programs (including both Section 215 and FISA Amendments Act) is to throw the data in with data collected under EO 12333, but add query screens tied to the more strict FISC-regulations governing production under it.

[snip]

NSA’s spokeswoman will say over and over that “everyday” or “ordinary” Americans don’t have to worry about their favorite software being sucked up by NSA. But to the extent that collection happens under EO 12333, they have relatively little protection.

That’s precisely the point made in an important op-ed by the State Department’s former Internet freedom chief, John Napier Tye, who had access to data from EO 12333 collection.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders.

[snip]

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

Tye reveals that a document the White House provided to Congress said it had no intention of limiting back door searches of EO 12333 collected data because it would require too many changes to existing programs.

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

And Tye implies that NSA is using EO 12333 to conduct the Internet dragnet.

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.

I have made repeatedly covered SPCMA, the EO 12333 authorized Internet dragnet, which the government rolled out just as it was shutting down its PATRIOT-authorized Internet dragnet.

Because you’ve been reading me, you already knew what most others are only discovering because of this op-ed.

The most important point Tye made — it’s one I’ve made too, but it can’t be said enough — is this:

The [Executive] order as used today threatens our democracy.

There is almost no oversight over this — and when Mark Udall suggested DOJ should exercise more of a role, the AAG for National Security showed no interest. This is the executive choosing to spy on Americans outside of all oversight.

That’s a threat to our democracy.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

7 replies
  1. What Constitution? says:

    The fact that you have reasoned through to these observations previously, Marcy, may be one of the most significant factors in the absence of an arrest of the very brave Mr. Tye since publishing that op-ed. The perpetuation of massive fraud or illegality is always dependent upon those in the know being too complicit or too fearful to reveal the truth, and it’s the bravery of conscience reflected by people like Mr. Tye that safeguards the expectation of honesty in our government. Sunshine is a great disinfectant, we can all still hope.

    Waiting anxiously for further elaboration.

  2. Hmmm says:

    Our old hypothesis that fiber originating inside the US is run across a border so it can be intercepted and Hoovered in whole off of US soil is looking more and more prescient with each passing day.

  3. orionATL says:

    “… This is the executive choosing to spy on Americans outside of all oversight.
    That’s a threat to our democracy…”

    the executive itself, specifically in its magistrate/policing/national security manifestations, e.g., doj, fbi, dept homeland security, nsa, whitehouse has become an imminent threat to our democracy greater than any conceivable terrorist activity.

    the obama whitehouse is an immenient danger to our society and democracy grester than anwar al-awlacki or osama bin laden or kahlid sheikh mohammed could ever be.

    is this hyperboly? absolutely not!

    obama’s fake reform and fake transparency re the nsa’s spying on americans are intended to hide what i am coming to believe is a carefully worked out strategic vision involving the u.s. not just (as formerly) a helpful superpower, but as that all-controlling in many other countries in the world, including not primarily third-world but european allies like germany, france, japan, et al.

    i suspect there is a whitepaper or other voluminous document produced by aei, brookings, or a bunch of pnac-like neocons laying out spying as foundation of our future military and economic domination of the world outside china and russia.

    • orionATL says:

      implications. what might they be?

      well, a “pax” (some nations might say “pox”) of the english speaking nations on much of the world.

      control of western european and south/east asian economic output, access to raw materials, inclusion in regional markets, rules for trade and transportation.

      in individual countries, control of political opposition to EWD (“english world dominance”), to trade policies viewed as unfair compensation or restraint on trade, to environmentally damaging trading rules, to existing political power holders in EWD-controlled nations.

  4. orionATL says:

    correction:

    “..but as that all-controlling empire ew writes about with its heel firmly on the neck not only of third-world countries but also of european allies like germany, france, et al., together with japan, korea, et al.

  5. galljdaj says:

    “…threat to our democracy…” is flat out wrong! Our Federal Govt has committed Federal crimes against me, totally blocked my right to redress the injustices done to me by the following agencies and People; Inspecter General of the USPS, FBI, DOJ and E. Holder, The secret Courts, and Our President lil obama!

    Ther is no threat, ‘its’ happened, Our constitution has beem abandoned by the last two presidents which equals two regimes acting as one dictatorship.

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