Here’s the best the NSA could come up with to deny the WaPo’s report about how it steals data from Google and Yahoo overseas.
NSA has multiple authorities that it uses to accomplish its mission, which is centered on defending the nation. The Washington Post’s assertion that we use Executive Order 12333 collection to get around the limitations imposed by the Foreign Intelligence Surveillance Act and FAA 702 is not true.
NSA seems defensive about WaPo’s suggestion they used EO 12333 — if they did — for this collection. But note that David Kris suggests at least one other possibility for this “vacuum cleaner” collection, voluntary production (as well as procedures subordinate to EO 12333), so it’s possible they didn’t use EO 123333. Maybe the first line is meant to suggest at least one of these providers did cough this up voluntarily (which I think past reporting might support).
NSA then engages in the most delectable projection ever, in which it takes this comment from its biggest apologist this side of Michael Hayden, John Schindler, and suggests the WaPo made the assertion.
Intercepting communications overseas has clear advantages for the NSA, with looser restrictions and less oversight. NSA documents about the effort refer directly to “full take,” “bulk access” and “high volume” operations on Yahoo and Google networks. Such large-scale collection of Internet content would be illegal in the United States, but the operations take place overseas, where the NSA is allowed to presume that anyone using a foreign data link is a foreigner.
Outside U.S. territory, statutory restrictions on surveillance seldom apply and the Foreign Intelligence Surveillance Court has no jurisdiction. Senate Intelligence Committee Chairwoman Dianne Feinstein has acknowledged that Congress conducts little oversight of intelligence-gathering under the presidential authority of Executive Order 12333 , which defines the basic powers and responsibilities of the intelligence agencies.
John Schindler, a former NSA chief analyst and frequent defender who teaches at the Naval War College, said it was obvious why the agency would prefer to avoid restrictions where it can.
“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,” he said. “It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA.” [my emphasis]
The WaPo didn’t make the assertion, NSA’s most loyal voice on Twitter did.