Presidential Executive Orders, US Spy Agencies, And Privacy

You probably never heard of Executive Order 12333. The Ars Technica blog explained what it is, the history leading up to the order, and how it affects spy programs today. Several NSA alumni offered their views of Executive Order 12333, issued in 1981:

“... 12333 is used to target foreigners abroad, and collection happens outside the US," whistleblower John Tye, a former State Department official, told Ars recently. "My complaint is not that they’re using it to target Americans, my complaint is that the volume of incidental collection on US persons is unconstitutional.” "

Another alumnus recalled that when President Reagan took office in 1981, he:

"... inherited an intelligence community that had been demoralized and debilitated by six years of public disclosures, denunciation, and budgetary limitations... during the Carter era, Congress set up onerous “procedures governing virtually every aspect of intelligence gathering in the US or affecting US citizens abroad.” These included the pesky House and Senate Select Committees on Intelligence, FISA, and FISC... 12333 was designed to allow NSA to have greater latitude when they pick up Americans [as part of] targets overseas..."

At that time, the primary perceived threat was spying by the Soviet Union. Terrorism was a lower priority:

"Ed Loomis, a cryptologist at the NSA from 1964 to October 2001 who later became a whistleblower, told Ars that every year, everyone working in the signals intelligence (SIGINT) division had to read EO 12333, FISA, and US SIGINT Directive 18 (July 1993) as a way to keep refreshed on the laws. Prior to the September 11 attacks, Loomis said the NSA's internal policy was to stay much more in line with FISA and not collect information—incidental or otherwise—on Americans."

How 12333 is used today:

"Thomas Drake, another well-known NSA veteran turned whistleblower, put it in simpler terms.“12333 is now being used as the ‘legal justification’... It’s not technically law... An executive order is the equivalent of the law, we have a constitutional process by which laws are created in this country... The NSA has carte blanche on foreign intelligence... They’re hiding behind 12333 to continue the vast collection of metadata and content... As long as there is reasonable doubt, they will hide behind what has been disclosed. What has been disclosed is 12333..."

I strongly urge you to read the entire Ars Technica blog post.