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20. EO 12333

The executive order that led to mass spying, as told by NSA alumni

Feds call it “twelve triple three”; whistleblowers says it's the heart of the problem.

by Cyrus Farivar
ArsTechnica, Aug 27 2014, 9:00pm EDT

One thing sits at the heart of what many consider a surveillance state within the US today.

The problem does not begin with political systems that discourage transparency or technologies that can intercept everyday communications without notice. Like everything else in Washington, there’s a legal basis for what many believe is extreme government overreach—in this case, it's 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.”

The document, known in government circles as "twelve triple three," gives incredible leeway to intelligence agencies sweeping up vast quantities of Americans' data. That data ranges from e-mail content to Facebook messages, from Skype chats to practically anything that passes over the Internet on an incidental basis. In other words, EO 12333 protects the tangential collection of Americans' data even when Americans aren't specifically targeted—otherwise it would be forbidden under the Foreign Intelligence Surveillance Act (FISA) of 1978.

In a May 2014 interview with NBC, former NSA contractor Edward Snowden said that he specifically asked his colleagues at the NSA whether an executive order could override existing statutes. (They said it could not.) Snowden’s lawyer, Jesselyn Radack, told Ars that her client was specifically “referring to EO 12333.”

CONTINUED...

http://arstechnica.com/tech-policy/2014/08/a-twisted-history-how-a-reagan-era-executive-order-led-to-mass-spying/

SIDEBAR:

EO 12333, SECTION 2.3 PARAGRAPH

2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention, and dissemination of the following types of information:

(a) Information that is publicly available or collected with the consent of the person concerned;

(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;

(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;