In the July 18th Edition of the Washington Post John Napier Tye, the State Departments former Section Chief on Internet Freedom in the departments Bureau of Human Rights and Labor posted an important op-ed concerned that the Reagan era executive order poses a direct risk to our democracy. While this is not surprising to those of us who have followed the NSA's success at narrowing the discussion down to various Patriot Act sections, it is important that someone of such credentials is bringing the discussion to the public.
From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. 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.
Tye starts his op-ed detailing how he was drafting a speech on NSA/Privacy discussion and wrote that in a democracy such as ours, if the public is truly wants to make changes to intelligence practices they have the ability through our democratic process to do this. It was removed because White House lawyers said this was not true.
But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did.
Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them.
Tye then goes on to detail EO 12333 and some of his concerns. A few select quotes, but please read the entire piece and share it as much as possible:
For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.
Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333
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Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.
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“Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity.
“Incidental collection” might need its own power plant.
When a person with such access to the materials tells you that he cannot discuss something, but that Americans should dig deeper... Im pretty sure that he is hinting at something pretty large:
All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that 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.