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Executive Order 12333 lets NSA unconstitutionally collect Americans' communications

NSA collecting and storing Americans' communications
Credit: Dennis Skley

Former State Department whistleblower warns Executive Order 12333 is a legal loophole that can be exploited to allow the NSA to collect and store Americans' communications.

John Napier Tye, a former State Department section chief for Internet freedom, took to the Washington Post to warn Americans about illegal surveillance conducted under Executive Order 12333 that “threatens our democracy.” There are, in theory, “built-in protections” against bulk collection of the actual audio portion of Americans’ calls. But bulk collection of phone conversations under Executive Order 12333, issued by President Ronald Reagan in 1981, “contains no such protections for U.S. persons if the collection occurs outside U.S. borders.”

At the end of June, researchers published a paper warning about legal loopholes for surveillance that could be exploited by the government in order to collect Americans’ communications in bulk without a warrant. Executive Order 12333 was one of the most troubling legal loopholes that the researchers said "deserves more attention and careful scrutiny." The government could exploit Executive Order 12333 by deliberately manipulating Americans’ network traffic so that it is routed through a device located abroad. If the data is located overseas, then it could belong to a non-American citizen and therefore be collected in bulk, such as "all internet traffic (including metadata and content) sent between a pair of networks."

Tye also warned that when the NSA “incidentally” collects Americans’ communications overseas, the “incidental collection” is “a legal loophole that can be stretched very wide.” Even if the traffic isn’t manipulated to be routed overseas, Americans’ communications are often stored beyond U.S. borders on mirror servers. “There is no good reason that U.S. citizens should receive weaker privacy and oversight protections simply because their communications are collected outside, not inside, our borders.”

Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.

“Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215,” he wrote. When former NSA chief and master of word games Keith Alexander said the NSA stopped using Section 215 to collect Americans’ telephone metadata, “Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper.”

Tye doesn't have an ax to grind, so to speak, as feds sometimes imply is the motivation for other whistleblowers who feel they were wronged. In fact, Tye said, “I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material.”

Before leaving the State Department, Tye filed a complaint “arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures." Even President Obama’s Review Group sounded the alarm on EO 12333, but the recommendation was “coded” in a way “that masked the true nature of the problem.” Tye pointed out that “the White House stated that adoption of Recommendation 12 would require ‘significant changes’ to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.”

Since Executive Order 12333 steps around civil liberty protections guaranteed by the Constitution, and may be more damning and dangerous to Americans than Section 215 of the Patriot Act and Section 702 of the FISA Amendments Act, Tye came forward to state:

When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

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