Panelists discuss the little-known intelligence authority Executive Order 12333 (PDF), and what it means for national security and privacy.
Robert Litt, General Counsel, Office of the Director of National Intelligence
John Tye, Legal Director, Avaaz, Section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014 (WaPo Op-Ed: Meet Executive Order 12333: The Reagan Rule that Lets the NSA Spy on Americans)
Laura K. Donohue, Professor of Law and Director of the Georgetown Center on National Security and the Law, Georgetown University Law Center
Nathan Sales, Associate Professor of Law, Syracuse University College of Law
(Moderator) Alvaro Bedoya, Executive Director, Georgetown Center on Privacy and Technology
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; information from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad, and the recording of the contents of every phone call made in at least two countries.
Edward Snowden, while still at NSA, wrote a now-famous email (PDF) to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true. Snowden’s lawyer, Jesselyn Radack, said that her client was specifically “referring to EO 12333.”
Thirty-year NSA veteran William Binney said drastic measures such as the NSA’s FAIRVIEW program—described by other intelligence whistleblowers as the NSA’s project to “own the Internet”—are also authorized under EO 12333.
“This program was started at least back in 2001 and has expanded to between 80 and 100 tap points on the fiber optic lines in the lower 48 states,” he said by e-mail. “Most of these fiber optic tap points are not on the East or West coast. This means that the primary target of this collection is domestic… Most collection of US domestic communications and data is done under EO 12333, section 2.3 paragraph C in the Upstream program. They claim, near as I can tell, that all domestic collection is incidental. That’s, of course, the vast majority of data.”
Last month the Privacy and Civil Liberties Oversight Board said it would re-examine EO 12333. But based on history, overturning an executive order simply isn’t a common outcome. Unless done by a subsequent executive order, it’s extremely difficult and has rarely happened. So for now, American data remains as accessible as it’s ever been.