Brennan Center Report on NSA Overseas Spying and Executive Order 12333

The Brennan Center has released a report on EO 12333, the executive order that regulates the NSA's overseas surveillance. Much of what the NSA does here is secret and, even though the EO is designed for foreign surveillance, Americans are regularly swept up in the NSA's collection operations:

Despite a series of significant disclosures, the scope of these operations, as well as critical detail about how they are regulated, remain secret. Nevertheless, an analysis of publicly available documents reveals several salient features of the EO 12333 regime:

  • Bulk collection of information: The NSA engages in bulk collection overseas -- for example, gathering all of the telephone calls going into or out of certain countries. These programs include the data of Americans who are visiting those countries or communicating with their inhabitants. While recent executive branch reforms place some limits on how the government may use data collected in bulk, these limits do not apply to data that is collected in bulk and held for a temporary (but unspecified) period of time in order to facilitate "targeted" surveillance.

  • Treating subjects of discussion as "targets": When the NSA conducts surveillance under EO 12333 that it characterizes as "targeted," it is not limited to obtaining communications to or from particular individuals or groups, or even communications that refer to specified individuals or groups (such as e-mails that mention "ISIS"). Rather, the selection terms used by the NSA may include broad subjects, such as "Yemen" or "nuclear proliferation."

  • Weak limits on the retention and sharing of information: Despite recent reforms, the NSA continues to exercise significant discretion over how long it may retain personal data gathered under EO 12333 and the circumstances under which it may share such information. While there is a default five-year limit on data retention, there is an extensive list of exceptions. Information sharing with law enforcement authorities threatens to undermine traditional procedural safeguards in criminal proceedings. Current policies disclosed by the government also lack specific procedures for mitigating the human rights risks of intelligence sharing with foreign governments, particularly regimes with a history of repressive and abusive conduct.

  • Systemic lack of meaningful oversight: Operations that are conducted solely under EO 12333 (i.e., those that are not subject to any statutory law) are not vetted or reviewed by any court. Members of the congressional intelligence committees have cited challenges in overseeing the NSA's network of EO 12333 programs. While the Agency has argued that its privacy processes are robust, overreliance on internal safeguards fails to address the need for external and independent oversight. It also leaves Congress and the public without sufficient means to assess the risks and benefits of EO 12333 operations.

The report concludes with a list of major unanswered questions about EO 12333 and the array of surveillance activities conducted under its rules and policies. While many operational aspects of surveillance programs are necessarily secret, the NSA can and should share the laws and regulations that govern EO 12333 programs, significant interpretations of those legal authorities, and information about how EO 12333 operations are overseen both within the Executive Branch and by Congress. It should clarify internal definitions of terms such as "collection," "targeted," and "bulk" so that the scope of its operations is understandable rather than obscured. And it should provide more information on how its overseas operations impact Americans' privacy, by releasing statistics on data collection and by specifying in greater detail the instances in which it shares information with other U.S. and foreign agencies and the relevant safeguards.

Here's an article from the Intercept.

And this is me from Data and Goliath on EO 12333:

Executive Order 12333, the 1981 presidential document authorizing most of NSA's surveillance, is incredibly permissive. It is supposed to primarily allow the NSA to conduct surveillance outside the US, but it gives the agency broad authority to collect data on Americans. It provides minimal protections for Americans; data collected outside the US, and even less for the hundreds of millions of innocent non-Americans whose data is incidentally collected. Because this is a presidential directive and not a law, courts have no jurisdiction, and congressional oversight is minimal. Additionally, at least in 2007, the president believed he could modify or ignore it at will and in secret. As a result, we know very little about how Executive Order 12333 is being interpreted inside the NSA.

Posted on March 21, 2016 at 6:53 AM • 37 Comments

Comments

Michael PMarch 21, 2016 7:25 AM

The last paragraph is awfully misleading. While an Executive Order itself might not be subject to civil law or court oversight, any efforts to apply the EO are subject to those constraints. I'd bet that the people who work on such programs get training that lays out the hierarchy of Constitution, statutes, executive orders, and subsidiary regulations and policies -- and how surveillance efforts must comply with all of the applicable rules.

Just an AustralianMarch 21, 2016 7:26 AM

Speaking as a non-US citizen, but a citizen of an ally, I wonder just why US citizens are deserving of rights not offered to allies or others. Is being 'nationalist' the same as being 'racist'? what rights does USA deem available for a non-person?

xyzMarch 21, 2016 7:28 AM

By definition, every such organization operating behind closed doors is corrupt. All this three letter agencies are almost autonomous.

stineMarch 21, 2016 7:38 AM

By definition, EOs are outside of the law in the sense that the 'E' has decided that something should be done for which no specific authority has been granted by law, hence EOs.

EvanMarch 21, 2016 7:48 AM

@Michael P: What, exactly, makes you so sure of this? Officials tasked with law enforcement and security routinely break the rules even when they know they are subject to judicial review, including facing opposing representation as part of the adversarial legal system. Do you really suppose those same officials, when freed of any formal obligation for restraint, due process, or proportionality, will suddenly have an attack of conscience and refrain from breaking the rules?

BenrusMarch 21, 2016 9:27 AM

@Michael P • "While an Executive Order itself might not be subject to civil law or court oversight..."

Nonsense. Presidential EO's are absolutely subject to judicial (and Congressional) scrutiny.

But the courts and Congress joined the Executive Branch in passively endorsing these flagrantly non-Constitutional EO actions. All three Federal Branches are corrupt.

The NSA itself was created by a non-Constitutional EO. The NSA is illegal, period!

The "Law" is whatever Federal politicians & bureaucrats say it is on any given day. And they are not even bound by their own daily interpretation of their "Law".

Quite a cognitive problem for those Americans who still naively believe they live in a representative democracy under the classic rule of law and justice.

jonesMarch 21, 2016 9:46 AM

It's really troubling that in a representational government we need to guess at what the laws are governing how information about our most intimate details is handled.

The Brennan center also has a wonderful writeup released a couple years ago, "What Went Wrong With the FISA Court?" that details the convoluted way in which the Bush Administration altered the legal justifications for NSA interceptions in response to court rulings:

It also accepted the government’s argument that “it is necessary to obtain the bulk collection [sic] of a telephone company’s metadata to determine . . . connections between known and unknown international terrorist operatives.” It concluded, in short, that because collecting irrelevant data was necessary to identify relevant data, the irrelevant data could thereby be deemed relevant.

https://www.brennancenter.org/publication/what-went-wrong-fisa-court

As discussed in a New York Times article from the 1980's, much of what the NSA does is extra-legal:

Yet over the three decades since the N.S.A. was created by a classified executive order signed by President Truman in 1952, neither the Congress nor any President has publicly shown much interest in grappling with the far-reaching legal conflicts surrounding the operation of this extraordinarily powerful and clandestine agency. A Senate committee on intelligence, warning that the N.S.A.'s capabilities impinged on crucial issues of privacy, once urged that Congress or the courts develop a legislative or judicial framework to control the agency's activities. In a nation whose Constitution demands an open Government operating according to precise rules of fairness, the N.S.A. remains an unexamined entity. With the increasing computerization of society, the conflicts it presents become more important. The power of the N.S.A., whose annual budget and staff are believed to exceed those of either the F.B.I. or the C.I.A., is enhanced by its unique legal status within the Federal Government. Unlike the Agriculture Department, the Postal Service or even the C.I.A., the N.S.A. has no specific Congressional law defining its responsibilities and obligations. Instead, the agency, based at Fort George Meade, about 20 miles northeast of Washington, has operated under a series of Presidential directives. Because of Congress's failure to draft a law for the agency, because of the tremendous secrecy surrounding the N.S.A.'s work and because of the highly technical and thus thwarting character of its equipment, the N.S.A. is free to define and pursue its own goals.

http://www.nytimes.com/1983/03/27/magazine/the-silent-power-of-the-nsa.html?pagewanted=all

Executive FarceMarch 21, 2016 9:56 AM

Bulk collection of information: The NSA engages in bulk collection overseas -- for example, gathering all of the telephone calls going into or out of certain countries.

Yeah - like all of them. Let's not kid ourselves there are any restraints at this stage.

Treating subjects of discussion as "targets"

Are you breathing? Then all your activities in the digital realm are included and you're a target. Limitless. Rogue. Criminal.

Weak limits on the retention and sharing of information

ha ha ha. Comedic stuff. Try "No Limits". Parallel construction paradise.

Systemic lack of meaningful oversight

Hysterical. There is no oversight if it is secret and hidden, even from chumps on the Intelligence Committees. Laughable concept.

While many operational aspects of surveillance programs are necessarily secret, the NSA can and should share the laws and regulations that govern EO 12333 programs

Bwahahaha nice punchline. Trump will develop a conscience and make intelligible statements long before that happens.

It should clarify internal definitions of terms such as "collection," "targeted," and "bulk"

Let me help: Everything, everything and.... everything. Capiche?

And it should provide more information on how its overseas operations impact Americans' privacy

You have none. And will continue to have none until said rogue organizations are defunded and rebuilt from scratch with clear (and constitutionally narrow) operational parameters.

specifying in greater detail the instances in which it shares information with other U.S. and foreign agencies and the relevant safeguards.

They will do as they see fit, whenever they feel like it, with zero safeguards - including sharing of raw, bulk data that has not been de-identified in any manner.

CallMeLateForSupperMarch 21, 2016 10:16 AM

@Just an Australian
"...I wonder just why US citizens are deserving of rights not offered to allies or others."

The extent to which Americans *deserve* certain rights could be the basis for a very interesting discussion.

As for certain rights being guaranteed to Americans but not to non-Americans, this is the case because the instrument securing those rights is the Constitution of the United States. That is the short answer. The long answer - most of it anyway - can be had by reading the Constitution; one quickly notices that it defines relationships between the government and the governed, not relationships between the U.S. government and foreign nations (or foreign citizens). Many laws defining relationships between the U.S. and other nations came only later. The extent to which *those*laws* are - or are not - fit for purpose is basis for another interesting discussion.

"Is being 'nationalist' the same as being 'racist'?"

No, but both are partisan, exclusionist.

"what rights does USA deem available for a non-person?"

Depends on what you mean by "non-person". IMHO, a forest is a non-person. Are you asking after the rights of trees?

CallMeLateForSupperMarch 21, 2016 10:25 AM

@Evan
"Do you really suppose those same officials, when freed of any formal obligation for restraint, due process, or proportionality, will suddenly have an attack of conscience and refrain from breaking the rules? "

Er... um... "Not wittingly."

Rolf WeberMarch 21, 2016 10:54 AM

From the report:

"Even for the activities disclosed by Snowden, information is often fragmentary and incomplete."

Exactly. The Snowden docs were selectively published, and the selection was made by biased "journalists". And not only this, the "journalists" additionally misrepresented the already fragmented documents.

But nevertheless the report relies in big parts on the wrong and misleading Snowden reporting. Sorry folks, that's crap. As I already said, better wait on the PCLOB report.

David E.March 21, 2016 11:09 AM

Wow! Just Wow!

Has anyone commenting on this article actually read EO12333?!? Many of the comments here are in direct conflict with the contents of EO12333.

I'll leave the research to find all the current provisions of EO12333 as an exercise for the reader.

TõnisMarch 21, 2016 11:19 AM

@Just an Australian, the rights enumerated in America's federal and states' constitutions are God-given rights that belong to people everywhere. They just happen to be enumerated in our constitutions. These rights which Americans enjoy are protected from infringement by Americans' federal and states' governments within their respective jurisdictions. It's geographical. Even were I, as an American, to come to Australia would I be protected by my US or home state's constitutions there? Only to the extent that the US might have a treaty with Australia. Other than that, I would not be within the physical/geographical jurisdiction of the United States or my home state, and I would be subject to Australian law. Likewise, were an Australian lawfully to come to my state, he would be physically/geographically within the jurisdiction of my state and the US. Would he enjoy the same 1st Amendment freedom of speech and the same Fifth Amendment right to not be compelled to witness against himself when accused of a crime as I or any American here would? Yes, because he's geographically within an area where the Constitution is in effect.

Our constitutions apply within their respective jurisdictions even to people who are here illegally! I support this. There are certain people of a fascist bent who would like to change that, to strip some people (ultimately any people they choose) of constitutional rights. I think Trump said something in the beginning about stripping "anchor babies" (children born to illegal immigrants) of their birthright American citizenship, because their parents are here illegally. This would be a disgraceful slide toward fascism if allowed and unlawful pursuant to the written supreme law of the land, our Constitution. I point out to my fellow Americans all the time that by the time a person is born here, even to an illegal, it's too late; it's not the child's fault -- he has committed no crime -- and he is constitutionally, by birth, an American.

Americans' struggle to enjoy and exercise their rights has been a constant battle since the founding of the country. Every day it's a battle, and always there's a tyrant working his way up to a power grab. In my example above about the illegal aliens and anchor babies, I constantly point out to my fellow Americans that it's the policy of their federal government to allow the illegal aliens to enter the country (even to import them). Otherwise it would be stopped, and it would not be happening at all. Only someone completely deluded would believe that we can wage wars and successfully occupy countries 10,000 miles away yet we can't protect our own borders from people entering illegally. It's a classic use of the dialectic where one has a goal, creates a problem, and presents a "solution":

Fascist goal: mess with peoples' (opponents, dissidents, whomever) citizenships and mandate a national ID for Americans

Thesis: import illegal aliens (i.e. a criminal class, with being here illegally already being a crime)

Antithesis: present solutions to the illegal alien and anchor baby problems (which the fascists themselves created) e.g. "We have to strip these anchor babies of their citizenship!" and "We need to know who is here legally and who is not so we can strip those anchor babies of their citizenship, therefore we need national ID's to be checked at random whenever the police choose or are directed to!"

Synthesis: mess with anyone's citizenship, hang it over his head like a baby on the no-fly list and "Your papers, please!" to anyone out on the street

Thesis + Antithesis = Synthesis

There are other reasons the illegals have been allowed to come here, but the ones I present above are plainly a few of the reasons for this attack on the American people which the traitors acting in the name of America's government have allowed and perpetrated. So, this part about "America" being racist is nonsense.

I used to feel bad and almost obligated to champion the rights of people in other countries. I used to blame America for doing business with an authoritarian, human rights violator: China. No more. I don't blame "America" for this. I blame the American oligarchs doing it, the American and international consumer supporting it, and the morally and otherwise corrupt acting in the name of America's government who are making it practical/enticing with free trade agreements. I also blame the Chinese. America's Founders rose up in revolution against their oppressors. What is wrong with the billion Chinese that they won't rise up against their oppressors?!? Not my fault, not my problem. I have enough problems trying to exercise my own rights that tyrants are trying to erode each day of my life. If you're in Australia, Europe, China, or wherever and are unhappy with the way America or anyone else is treating you, take it up with your own government, who should be protecting you and whatever you think your rights are (or should be) ... which, by the way, your government should be doing instead of kowtowing to anglo-American oligarchs and other assorted fascists.


@all, "Executive Orders" are just that: orders that apply to the Executive branch. They do not supersede or overrule the federal or states' constitutions, and they are not lawful orders to the American people within the fifty states.

An Ordinary AmericanMarch 21, 2016 12:16 PM

@Just an Australian

You are spot on. I am ashamed to be an American, when I see my fellow Americans viewing the rest of the world as subhuman slaves to America, deserving of no Human Rights whatsoever!

Make no mistake, not all Americans are that bad, but the fact that quite a few are and most in government seem to be, it's a disgrace!

Marcos El MaloMarch 21, 2016 1:38 PM

@Just an Australian

Within territorial U.S., the Constitution Applies to anyone regardless of citizenship. You can vacation in the U.S. or its possessions and your Constitutionally enumerated rights are the same as that of any citizen.

skeptischMarch 21, 2016 2:21 PM

Fake Kraut persona Rolf wants you to wait for the PCLOB report. In other news, America awaits the authoritative NAMBLA report on 18 U.S. Code § 2252A.

Dirk PraetMarch 21, 2016 7:34 PM

@ Rolf Weber

As I already said, better wait on the PCLOB report.

From page 39 of the Brennan report: The Privacy and Civil Liberties Oversight Board is conducting in-depth examinations of NSA and CIA programs under EO 12333, but has noted that its review is limited to counterterrorism activities, and that its findings will be largely or entirely classified. The public is also unable to scrutinize the methodology and results of audits and investigations conducted by agencies’ own oversight personnel, as these generally are classified as well.

How this limited and largely or entirely classified report will contribute in any way to a better understanding by the general public of said programs under EO 12333 is a complete mystery to me. I suppose we'll just have to take Senator Feinstein's word for it that everything is totally hunky dory.

@ skeptisch

In other news, America awaits the authoritative NAMBLA report on 18 U.S. Code § 2252A.

+1

The Netherlands used to have a similar organisation called Vereniging MARTIJN.

@ Marcos El Malo

Within territorial U.S., the Constitution Applies to anyone regardless of citizenship.

I believe there are some exceptions in border areas such as air and seaports.

ThirteenthLetterMarch 21, 2016 7:45 PM

@Just an Australian
"...I wonder just why US citizens are deserving of rights not offered to allies or others."

If you would like the same rights under US law that American citizens have, why not have Australia apply for statehood? It's right there in the Constitution, Article IV, Section 3. It's not hard to do and we'd love to have you!

lolMarch 21, 2016 10:36 PM

@Dirk Praet, Marcos El Malo

"I believe there are some exceptions in border areas such as air and seaports."

That's an understatement.

100 miles from any border (https://www.aclu.org/know-your-rights-governments-100-mile-border-zone-map) and on any "navigable waters" (i.e. all rivers and lakes, courtesy CoastGuard) and anywhere on roads or at airports (DUI checkpoints, airport security, etc) are all effectively Constitution-free zones, where the Government has carved out huge exceptions to the Constitution! Most Americans are living and traveling in such areas all the time. Yet nobody cares... because, you know, "safety" trumps all liberty and rule of law and basic Constitutionality.

CuriousMarch 22, 2016 2:17 AM

The number 12333 seems like a high number.

Could there be really thousands of executive orders? If so, why are there so many of them?

Rolf WeberMarch 22, 2016 5:56 AM

@Dirk Praet

I said let's better wait on the PCLOB report, because it can only be better than this report, which largely relies on wrong and misleading Snowden "revelations".

The PCLOB's 215 and 702 reports were excellent (and the 215 report should even please you), even the unclassified ones. So I expect the same for the EO 12333 report, but of course I can only tell for sure after it was released.

Dirk PraetMarch 22, 2016 9:25 AM

@ Rolf Weber

I said let's better wait on the PCLOB report, because it can only be better than this report, which largely relies on wrong and misleading Snowden "revelations".

There is no point in waiting for a limited report that will be largely or entirely classified. And as it will only contain limited, carefully redacted and cherry picked information by biased editors, it will according to your own logic be as wrong and misleading as Snowden's revelations.

The PCLOB's 215 and 702 reports were excellent (and the 215 report should even please you), even the unclassified ones. So I expect the same for the EO 12333 report,

Also known as the hasty generalisation fallacy. And I'm not gong to debate the value of their other reports. I refer to @skeptisch's comment.

lolMarch 22, 2016 9:39 AM

@Dirk

No no, that report's gonna be golden, because it's written by HIS biased editors that adhere to the same State Religion of Governmental Rulership as he does! Kneel before your Gods!

It's as simple as that. Rolf is a religious fanatic. And the Almighty God State is his God. Right or wrong, it's always right because it says so. Same with Skeptical.

lolMarch 22, 2016 9:43 AM

Obama, Feinstein, and Comey are the Trinity... like the Father, Son, and Holy Spirit. Whatever they say is Absolute Truth, simply because they declare it to be so.

Rolf WeberMarch 22, 2016 10:14 AM

@Dirk Praet

To call PCLOB members "biased editors" is simply ridiculous (for example, they rated the 215 program unconstitutiona). Not even the ACLU or EFF would make such stupid comments

Dirk PraetMarch 22, 2016 10:51 AM

@ Rolf Weber

To call PCLOB members "biased editors" is simply ridiculous

I do not share your opinion that the PCLOB is an objective or impartial entity since they are made up of four lawyers, three of whom are former DoJ attorneys and only one other with a civil liberties background. Before the arrival of the 5th member in February this year, technology specialist Steve Bellovin, they didn't even have any technically literate person on board.

The Elite Commandos of the Bay of PigsMarch 22, 2016 11:36 AM

The PCLOB is horseshit. If you're not a fanatical statist apparatchik like Rolf, you can have a good laugh reading how the spies cut the nuts off these poor cringing apple-polishers:

https://www.fas.org/sgp/crs/misc/RL34385.pdf

And it's getting more pathetic all the time. The Intelligence Authorization Act for FY 2016 (Title III, Subtitle A, Sec. 306 para. (5)) prevents the PCLOB from learning anything about covert action. Everything illegal NSA does is covert action.

What the spooks did to the PCLOB is the funniest trick since they put addled cub scout Charles Leidig in charge of the National Military Command Center on 9/11.

Rolf WeberMarch 22, 2016 4:52 PM

@Dirk Praet

To disagree with PCLOB is one thing. That's ok. But to call PCLOB members (including, but not limited to Bellovin) "biased editors" is simply disgraceful. But that's your problem.

lolMarch 22, 2016 5:33 PM

But no, it's not the least bit disgraceful to worship the ground our government leaders walk on... that's just the normal thing everyone should do, right Rolf? They are altogether perfect Gods, right? lol!

Dirk PraetMarch 22, 2016 5:50 PM

@ Rolf Weber

But to call PCLOB members (including, but not limited to Bellovin) "biased editors" is simply disgraceful.

When a five man committee tasked with a largely or entirely classified report on the Volkswagen scandal has three former VW executives on it, what are the chances anything objective will come out of it and what are the chances anyone but the most ardent VW supporter will buy it?

lolMarch 22, 2016 8:48 PM

@Dirk

Well, if you ask a most ardent worshiper, I mean, supporter, like you are... then the chances are 100% that it will be impartial, and only stupid heretics that deserve to be beheaded would dare disagree! The Dark Ages are coming man! All communication must be monitored and all thought must be controlled, to ensure this!

WaelMarch 22, 2016 10:05 PM

@Rolf Weber, CC: @Dirk Praet,

You need to read the link in the original post: reduce our own security. (Keys under doormats). The challenges are not only technical, there are also additional operational and legal challenges. Here are "some highlights".

any proposals that alter the security dy- namics online should be approached with caution.

This is mainly what you've been discussing.

The complexity of today’s Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws.

The newley expected vulnerabilities...

the prospect of globally deployed exceptional access systems raises difficult problems about how such an environment would be governed and how to ensure that such systems would respect human rights and the rule of law.

You'll need to consider the other dimensions referenced above. This isn't a one-dimensional technical challenge.

Dirk PraetMarch 23, 2016 8:30 AM

@ Wael

You'll need to consider the other dimensions referenced above. This isn't a one-dimensional technical challenge.

Suffering from tunnel vision and a limited set of soft skills is unfortunately commonplace with many engineers. I've known quite some types who never made it out of strictly technical roles in non customer facing positions because they are too quarrelsome and too much of a liability to have them do anything else. Many of them eventually end up deeply frustrated because nobody recognizes their superior intellect, never realising that they are their own worst enemy.

WaelMarch 23, 2016 1:32 PM

@Dirk Praet,

Suffering from tunnel vision and a limited set of soft skills is unfortunately commonplace with many engineers...

Very true!

Leave a comment

Allowed HTML: <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre>

Photo of Bruce Schneier by Per Ervland.

Schneier on Security is a personal website. Opinions expressed are not necessarily those of IBM Resilient.