Brennan Center Report on NSA Overseas Spying and Executive Order 12333

The Brennan Center has released a report on EO 12333, the executive order that regulates the NSA’s overseas surveillance. Much of what the NSA does here is secret and, even though the EO is designed for foreign surveillance, Americans are regularly swept up in the NSA’s collection operations:

Despite a series of significant disclosures, the scope of these operations, as well as critical detail about how they are regulated, remain secret. Nevertheless, an analysis of publicly available documents reveals several salient features of the EO 12333 regime: Bulk collection of information: The NSA engages in bulk collection overseas — for example, gathering all of the telephone calls going into or out of certain countries. These programs include the data of Americans who are visiting those countries or communicating with their inhabitants. While recent executive branch reforms place some limits on how the government may use data collected in bulk, these limits do not apply to data that is collected in bulk and held for a temporary (but unspecified) period of time in order to facilitate “targeted” surveillance.

The NSA engages in bulk collection overseas — for example, gathering all of the telephone calls going into or out of certain countries. These programs include the data of Americans who are visiting those countries or communicating with their inhabitants. While recent executive branch reforms place some limits on how the government may use data collected in bulk, these limits do not apply to data that is collected in bulk and held for a temporary (but unspecified) period of time in order to facilitate “targeted” surveillance. Treating subjects of discussion as “targets”: When the NSA conducts surveillance under EO 12333 that it characterizes as “targeted,” it is not limited to obtaining communications to or from particular individuals or groups, or even communications that refer to specified individuals or groups (such as e-mails that mention “ISIS”). Rather, the selection terms used by the NSA may include broad subjects, such as “Yemen” or “nuclear proliferation.”

When the NSA conducts surveillance under EO 12333 that it characterizes as “targeted,” it is not limited to obtaining communications to or from particular individuals or groups, or even communications that refer to specified individuals or groups (such as e-mails that mention “ISIS”). Rather, the selection terms used by the NSA may include broad subjects, such as “Yemen” or “nuclear proliferation.” Weak limits on the retention and sharing of information: Despite recent reforms, the NSA continues to exercise significant discretion over how long it may retain personal data gathered under EO 12333 and the circumstances under which it may share such information. While there is a default five-year limit on data retention, there is an extensive list of exceptions. Information sharing with law enforcement authorities threatens to undermine traditional procedural safeguards in criminal proceedings. Current policies disclosed by the government also lack specific procedures for mitigating the human rights risks of intelligence sharing with foreign governments, particularly regimes with a history of repressive and abusive conduct.

Despite recent reforms, the NSA continues to exercise significant discretion over how long it may retain personal data gathered under EO 12333 and the circumstances under which it may share such information. While there is a default five-year limit on data retention, there is an extensive list of exceptions. Information sharing with law enforcement authorities threatens to undermine traditional procedural safeguards in criminal proceedings. Current policies disclosed by the government also lack specific procedures for mitigating the human rights risks of intelligence sharing with foreign governments, particularly regimes with a history of repressive and abusive conduct. Systemic lack of meaningful oversight: Operations that are conducted solely under EO 12333 (i.e., those that are not subject to any statutory law) are not vetted or reviewed by any court. Members of the congressional intelligence committees have cited challenges in overseeing the NSA’s network of EO 12333 programs. While the Agency has argued that its privacy processes are robust, overreliance on internal safeguards fails to address the need for external and independent oversight. It also leaves Congress and the public without sufficient means to assess the risks and benefits of EO 12333 operations. The report concludes with a list of major unanswered questions about EO 12333 and the array of surveillance activities conducted under its rules and policies. While many operational aspects of surveillance programs are necessarily secret, the NSA can and should share the laws and regulations that govern EO 12333 programs, significant interpretations of those legal authorities, and information about how EO 12333 operations are overseen both within the Executive Branch and by Congress. It should clarify internal definitions of terms such as “collection,” “targeted,” and “bulk” so that the scope of its operations is understandable rather than obscured. And it should provide more information on how its overseas operations impact Americans’ privacy, by releasing statistics on data collection and by specifying in greater detail the instances in which it shares information with other U.S. and foreign agencies and the relevant safeguards.

Here’s an article from the Intercept.

And this is me from Data and Goliath on EO 12333:

Executive Order 12333, the 1981 presidential document authorizing most of NSA’s surveillance, is incredibly permissive. It is supposed to primarily allow the NSA to conduct surveillance outside the US, but it gives the agency broad authority to collect data on Americans. It provides minimal protections for Americans; data collected outside the US, and even less for the hundreds of millions of innocent non-Americans whose data is incidentally collected. Because this is a presidential directive and not a law, courts have no jurisdiction, and congressional oversight is minimal. Additionally, at least in 2007, the president believed he could modify or ignore it at will and in secret. As a result, we know very little about how Executive Order 12333 is being interpreted inside the NSA.

Posted on March 21, 2016 at 6:53 AM • 37 Comments