ACLU Files A New Lawsuit About The NSA's Biggest Loophole: The Unchecked Power Of Executive Order 12333

from the they-matter-too dept

While the ACLU may have lost (for now, though it will appeal) its case concerning the legality of the NSA’s use of Section 215 of the PATRIOT Act to scoop up all metadata on every phone call, that’s clearly not stopping the organization from challenging the government’s surveillance efforts. The ACLU has filed a new lawsuit, which is technically in response to a rejected Freedom of Information Act request for info on Executive Order 12333.

As we’ve mentioned in the past, while so much focus on the NSA’s activities have been directed at things like FISA and the PATRIOT Act, those only cover surveillance of “US persons.” So much of what the NSA is doing is targeted at people abroad, and for that, those US laws don’t apply. Instead, nearly all of it comes from Executive Order 12333. And, while US courts have no jurisdiction over people abroad, what more and more people are recognizing, is that the NSA is using its (even broader) powers under EO 12333 to collect tons of information on people both abroad and in the US.

Although EO 12,333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed that the government interprets that authority to permit sweeping monitoring of Americans’ international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern. While the government has released several documents describing the rules that govern its collection and use of Americans’ international communications under statutory authorities regulating surveillance on U.S. soil, little information is publicly available regarding the rules that apply to surveillance of Americans’ international calls and emails under EO 12,333.

That gap in public knowledge is particularly troubling in light of recent revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans’ cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accounts; and information from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad.

This is quite important for a variety of reasons, including that nearly every rationale given by the NSA and its defenders for surveillance programs under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act simply doesn’t apply to surveillance done under EO 12333. Claims such as that the surveillance has oversight from all three branches of government? That’s not true at all — not even in the fake-oversight way that there’s “official” oversight of the US-focused programs. Claims that the courts have tested these programs? Again, not so. The FISA Court has no authority over the programs that are technically under EO 12333. Basically, it’s fair game — and since it’s now obvious that these programs are collecting data on Americans, the ACLU is making the fairly strong argument that there needs to be some legal analysis — and, as a starting point, the government should reveal its own basis for these programs.

Filed Under: , , , ,
Companies: aclu

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “ACLU Files A New Lawsuit About The NSA's Biggest Loophole: The Unchecked Power Of Executive Order 12333”

Subscribe: RSS Leave a comment
7 Comments
art guerrilla (profile) says:

i'm not going to stop bitching about this...

WHERE in the constitution -or anywhere else- is there some authorization for ‘Executive Orders’ and/or ‘signing statements’ ? ? ?

would *SOMEONE* please tell me ? ? ?

(NEVERMIND ‘SECRET’ Executive Orders/signing statements, that’s just TOTAL bullshit from start to end…)

the VERY PRINCIPLE of these aconstitutional actions TOTALLY undermines the whole existence of small-dee democracy…

i mean, mike rightfully upbraided someone for going full-paranoid, and saying choco jesu is close to declaring himself dictator-for-life; but when we are allowing dictator-like powers like this to substitute for democracy…
given that, i’m not sure how far away from a dictatorship we already are ! ! !

John Fenderson (profile) says:

Re: i'm not going to stop bitching about this...

Nowhere. But it doesn’t need to be. Technically, an EO is not law, and does not have the force of law. It is a directive to the rest of the executive branch, like an executive memo in a company.

I see nothing problematic about executive orders. An EO cannot authorize actions which are prohibited by law or the Constitution (because it’s not actually law.)

alternatives() says:

Re: Re: i'm not going to stop bitching about this...

Nowhere. But it doesn’t need to be. Technically, an EO is not law, and does not have the force of law. It is a directive to the rest of the executive branch, like an executive memo in a company. I see nothing problematic about executive orders. An EO cannot authorize actions which are prohibited by law or the Constitution (because it’s not actually law.)

But if the guys and gals with guns come and use that force or threat of force or ones who have the power to “raid” your bank accounts “under color of law” – exactly how was that different than the EO being law?

Leave a Reply to alternatives() Cancel reply

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...