ACLU, along with Media Freedom and Information Access Clinic at Yale Law School, today filed a Freedom of Information Act lawsuit demanding that the government release basic information about its use of Executive Order 12333 to conduct surveillance of Americans’ international communications.
The executive order, signed by President Reagan in 1981 and modified many times since, is the authority relied upon by the intelligence agencies, including the NSA, to conduct surveillance of foreigners outside of the United States. According to recent reports, however, the government relies upon the executive order to sweep up the international communications of countless Americans.
Although EO 12333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed that the government interprets that authority to permit sweeping monitoring of Americans’ international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern. While the government has released several documents describing the rules that govern its collection and use of Americans’ international communications under statutory authorities regulating surveillance on U.S. soil, little information is publicly available regarding the rules that apply to surveillance of Americans’ international calls and emails under EO 12333.
That gap in public knowledge is particularly troubling in light of recent revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans’ cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accounts; and information from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad.
The rules that govern surveillance under the executive order are of particular concern because that surveillance is not meaningfully overseen by Congress, and it is not overseen at all by the Foreign Intelligence Surveillance Court. In other words, the executive is conducting surveillance under its own executive order without any real oversight.
One document already released is a recent version of U.S. Signals Intelligence Directive 18, dated 2011. USSID 18 — as it is commonly referred to — regulates the NSA’s collection of Americans’ communications, including from surveillance conducted on foreign soil. Until Edward Snowden’s disclosures, little was known about how the NSA interpreted its authority under USSID 18. Many questions remain unanswered even since those disclosures, but this much is clear: the government interprets USSID 18 to permit it to sweep up Americans’ international communications without any court order and with little oversight.
We now know too well that unchecked surveillance authority can lead to dangerous overreach.