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ACLU on Executive Order 12333: NSA may be laughing at your sex tape

The ACLU warned that 'NSA analysts may be laughing at your sex tape' thanks to surveillance under Executive Order 12333.

NSA surveillance
Credit: KAZ Vorpal

NSA signals intelligence analysts may have used Executive Order 12333 to “share voice cuts” of “good phone sex,” according to a NSA memo (pdf) acquired via the ACLU’s Freedom of Information Act request.

Surveillance conducted under presidential Executive Order 12333, issued by President Ronald Reagan in 1981, allows the NSA to keep the content of U.S. citizens’ communications collected “incidentally” while the agency is targeting overseas surveillance. The American Civil Liberties Union pointed out specific unredacted portions of a 2009 memo to the Inspector General that discussed NSA SIGINT using Executive Order 12333 to collect and share voice cuts of “good phone sex.” (Number three was completely redacted, so it was left out of the screen grab below.)

Executive Order 12333 about NSA sharing voice cuts NSA via ACLU FOIA

“While phone sex may be a slowly dying art, the risk of NSA abuse has only grown as new media takes its place,” said the ACLU’s Ashley Gorski. Thanks to surveillance under Executive Order 12333, “NSA analysts may be laughing at your sex tape.” Gorski added:

Today, EO 12333 surveillance can put your nude selfies and your sex tapes into the NSA's hands, where analysts may once again be tempted to pass them around in violation of agency rules. As Edward Snowden recently said, the auditing of the NSA's systems is weak, and the ability to ogle nude photos is seen as one of the "fringe benefits of surveillance positions.”

Snowden told The Guardian that when some NSA analysts intercept photos of a sexual nature, they cannot pass up the temptation to pass the images around. He witnessed this privacy invasion "numerous" times and called the occurrences "routine enough" to be considered "fringe benefits of surveillance positions."

Snowden added, “The fact that your private images, records of your private lives, records of your intimate moments have been taken from your private communications stream from the intended recipient and given to the government without any specific authorization without any specific need is itself a violation of your rights. Why is that in a government database?”

The NSA issued a denial similar as when LOVEINT, or NSA abusing surveillance power in the name of love, hit the media. The agency claims to have “zero tolerance for willful violations of the agency’s authorities or professional standards, and would respond as appropriate to any credible allegations of misconduct.”

Yet according to the latest NSA Civil Liberties and Privacy Office report (pdf) covering NSA-targeted surveillance through Executive Order 12333, the NSA adheres to Fair Information Practice Principles (FIPPs) “ensuring that the NSA collects the right information from the right targets and does not share the collected information inappropriately.” Neither the sharing of Americans' phone sex recordings nor intercepted nude selfies were discussed in the report.

Earlier this year, researchers found loopholes the government could exploit to conduct warrantless surveillance on Americans’ electronic communications, by routing it overseas, so that there are no Fourth Amendment protections. That was followed by a former State Department section chief for Internet freedom echoing a warning about Executive Order 12333 allowing NSA to step around civil liberty protections and collect the communications of "millions, or hundreds of millions, of Americans."

The ACLU’s Gorski also mentions another NSA memo (pdf) acquired through a FOIA request in which the NSA admits that under Executive Order 12333 "it is not possible to determine what communications are to or from U.S. persons nearly as readily as is the case with telephony, and often is not possible at all." Marcy Wheeler compared Executive Order 12333 to "presidential pixie dust" that wipes "away with your basic rights." That seems fairly accurate.

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