Much attention has been paid to the USA Patriot Act and the Foreign Intelligence Surveillance Act, which grant the federal government wide latitude in collecting electronic data. But the granddaddy of spying authorizations goes back to the Reagan Administration, and even Congress doesn’t know much about how it works.

Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981. The order provides that the “United States intelligence effort shall provide the President and the National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats.”

According to an op-ed by former State Department official John Napier Tye in The Washington Post, “Sen. Dianne Feinstein (D-California), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to ‘sufficiently’ oversee activities conducted under 12333.”

The order specifically charges the National Security Agency (NSA) with “Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence” and “Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence.”

As part of the order dealing with the collection of intelligence, it specifies that agencies are authorized to collect and retain “Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.” That section allows information about U.S. citizens to be retained as long as the collection is incidental. This is true whether or not the citizen in question is suspected of wrongdoing.

The Review Group on Intelligence and Communications Technologies made numerous recommendations in its report on the NSA and how it deals with data. Among them was Recommendation 12, which urged that information about U.S. citizens obtained in connection with surveillance of foreign subjects be “purged upon detection” unless it has foreign intelligence value. That’s apparently not being done under intelligence produced under authority of 12333.

According to a recently declassified document, “Unenciphered communications not thought to contain secret meaning may be retained for five years unless the Signals Intelligence Director determines in writing that retention for a longer period is required to respond to authorized foreign intelligence requirements.”

So, what’s 12333 being used for? According to the Electronic Frontier Foundation, its authority is used to cull American’s electronic address books and buddy lists, to put malware on Facebook servers and to justify the recording of all of a country’s telephone calls.

-Steve Straehley

To Learn More:

Meet Executive Order 12333: The Reagan Rule That Lets The NSA Spy on Americans (by John Napier Tye, Washington Post)

A Primer on Executive Order 12333: The Mass Surveillance Starlet (by Mark Jaycox, Electronic Frontier Foundation)

Citizens Deserve to Understand How the Government Uses Executive Order 12,333 to Spy on Americans…32 Years after it was Issued (by Matt Bewig, AllGov)