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Over Easy: Still Fighting the Surveillance State

Eff spying eagle

Spying Eagle

Welcome to 2014. No, the surveillance state didn’t disappear with the rollover of the calendar.

It seems, among other things, that there is a surveillance order that has been flying under the radar, known as Executive Order 12333–United States intelligence activities. It has been around since Reagan signed it in December 1981, and its preamble begins,

Timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available.

On December 30th, the ACLU and Yale Law School’s Media Freedom and Information Access Clinic filed a FOIA lawsuit in Federal court, demanding that the government release information about its use of Executive Order 12333 to conduct surveillance of Americans’ international communications. The complaint reads, in part,

The executive order, signed by President Reagan in 1981 and modified many times since, is the authority relied upon by the intelligence agencies, including the NSA, to conduct surveillance of foreigners outside of the United States. According to recent reports, however, the government relies upon the executive order to sweep up the international communications of countless Americans. For example, it collect billions of records every day containing the location information of mobile phones, including Americans’ phones; to harvest the address books of email users; and to sweep up the information of users of Google and Yahoo as it travels between those companies’ data centers abroad.

One document already released to the ACLU is a recent version of U.S. Signals Intelligence Directive 18, dated 2011 [that] regulates the NSA’s collection of Americans’ communications, including from surveillance conducted on foreign soil. Until Edward Snowden’s disclosures, little was known about how the NSA interpreted its authority under USSID 18. Many questions remain unanswered even since those disclosures, but this much is clear: the government interprets USSID 18 to permit it to sweep up Americans’ international communications without any court order and with little oversight.

For years the NSA has used its authority to gather foreign intelligence as permission to conduct sweeping surveillance of Americans’ international communications. This happens under the laws that govern surveillance on U.S. soil. Recent revelations by Edward Snowden make it clear that this happens — probably to an even greater extent — in surveillance conducted abroad under Executive Order 12333.

Almost all of the rationale for surveillance programs under Section 215 of the PATRIOT Act, and Section 702 of the FISA Amendments Act that the NSA has offered does not apply to surveillance under Executive Order 12333. Claims that the surveillance has oversight from all three branches of government is demonstrably untrue. It also is untrue that the courts have tested these programs, because the FISA Court has no authority over programs that fall under this Executive Order.

We are learning daily how this ungoverned authority has led to dangerous surveillance overreach. The ACLU is asking for the release of documents that would clarify the internal rules the administration applies to itself (or doesn’t) when it monitors international communications abroad — including those of Americans. Since it’s obvious that these programs are — and have been for a long time — collecting information about Americans on American soil, the ACLU is arguing for legal analysis, beginning with making the government disclose its own basis for conducting these programs.

Logo by Electronic Frontier Foundation, for case against the government seeking to stop the illegal spying operation run by the NSA; licensed under the Creative Commons Attribution 3.0.

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I retired from the University of Notre Dame in the Office of Information Technology in 2010. I'm divorced, with two grown children and 8 grandchildren. I'm a lifelong liberal and a "nonbeliever."