Ex-State Department Official Reveals That Everyone's Focused On The Wrong NSA Surveillance Programs

from the don't-get-bogged-down-in-section-215-and-702 dept

We've written a few times about Executive Order 12333, which we've described as "the NSA's biggest loophole." It's the unchecked power, created entirely via executive order, for the NSA to do anything it wants to spy on anyone -- including Americans -- so long as that data is collected overseas. Remember how the NSA had hacked into Google and Yahoo's datacenters? That was done overseas under EO 12333, allowing them to do whatever they wanted with that information -- content and metadata -- with no oversight at all. For all the talk about how the NSA is bounded by oversight from "all three branches" of government, that's clearly not the case. Everything happening under EO 12333 is mostly considered to be only controlled by the Executive branch, which created the order in the first place. There are no reports to Congress about it, and even Dianne Feinstein has admitted that the Intelligence Committee doesn't touch any of the surveillance done under EO 12333.

In an incredibly revealing opinion piece, former State Department official John Napier Tye, who just left in April of this year, goes on in great detail about how EO 12333 is the real concern and how it's almost certainly a violation of the 4th Amendment.
Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.

Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.
Tye actually opens his piece with a rather revealing anecdote about a speech he wrote which had to be adjusted to make it factual. The change... is quite important:
In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.”

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.
In other words, for anyone who claims that the NSA's surveillance can be changed democratically via Congress -- well, the White House basically knows that's simply not true.

For his part, Tye did exactly what NSA defenders keep insisting anyone with problems should do: he filed complaints internally, making use of all the proper channels:
Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.
Tye also makes it quite clear that the NSA is almost certainly collecting email and internet data, despite denials from General Alexander. It appears that Alexander pulled a "not under this authority" trick to try to mislead people:
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 should dig deeper.

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.
He also notes that when the Presidential task force recommended changes, it secretly intended some of the changes to apply to EO 12333 but worded it in a way to avoid revealing how much that program was used -- but the White House and the intelligence community are now resisting those changes because of the impact it would have:
The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees.

In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.
There's a lot more in Tye's piece -- but kudos to him for coming out and making this point clearly. While we've raised concerns about EO 12333 in the past, most of the discussion has been focused on the officials programs concerning what happens domestically: Section 215 of the Patriot Act and Section 702 of the FISA Amendments Act. But as Tye makes clear, those programs are only used to "backfill" what can't be picked up under EO 12333 -- a program that has no real oversight, and which is used broadly to collect all kinds of content on people around the globe, including Americans.

Thanks to Tye for standing up and stating clearly what's going on. Hopefully it will lead others to stand up and get the White House and the NSA to come clean.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    silverscarcat (profile), Jul 21st, 2014 @ 8:15am

    He should enter Witness Protection...

    I have no doubt that something "unfortunate" might befall him soon if he doesn't.

    Look what has happened to everyone else who revealed something about this administration.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Jul 21st, 2014 @ 10:29am

    Bruce Schneier blogged a little while ago how traffic shaping + EO12333 would allow for collection of domestic content once directed overseas and back

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Jul 21st, 2014 @ 10:33am


    Indeed. Or they just get it from GHCQ and avoid the round drip.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jul 21st, 2014 @ 11:02am

    Re: Re:

    You missed the point, send data from from one building via a foreign country to the next door building, so that it can be gathered on foreign soil. Just think, route voip traffic in this fashion and they can listen in to all the phone calls.

    reply to this | link to this | view in thread ]

  5. identicon
    EponymousCoward, Jul 21st, 2014 @ 11:03am

    Has anyone seen the popcorn vendor?

    I can't wait to see the next round of contortionist come along and attempt to bend themselves into balloon animal shapes in an effort to hand-wave this all away as "completely above board"...

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jul 21st, 2014 @ 11:23am

    what is recommendation 12?

    reply to this | link to this | view in thread ]

  7. icon
    DannyB (profile), Jul 21st, 2014 @ 11:24am


    The NSA can deny doing anything under orders X, Y and Z if they are doing it under order P or Q.

    Maybe there are other secret orders we don't even know about. That congress doesn't know about. This gives the ability to deny doing anything under any actual order that an accuser might mention.

    If an accuser doesn't mention any order or law, the NSA can say, we are in full compliance with Laws T, U and V, and orders X, Y and Z, etc.

    People that can twist the constitution to mean the opposite of what it says, in violation of the plain meaning of the text, are capable of doing anything. Lies of omission aren't even a bump in the road.

    The apparatus and behavior of a police state.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jul 21st, 2014 @ 11:52am

    Geezuz, America, you're starting to annoy me. Get your shit together and sort out your bezerk fucking politicians.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jul 21st, 2014 @ 12:18pm

    Re: Has anyone seen the popcorn vendor?

    Like some of its prisoners our gov loves to torture logic as well

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Jul 21st, 2014 @ 12:52pm

    could techdirt please check as to what reading/listening material he prefers? that way will give t to collect that material together so he has it when the feds break down his door in the dead of night, remove him, hooded, in a black van to a place of unknown position, never to be seen again (unless, of course, they decide to take the 'he had an accident' road instead!)

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Jul 21st, 2014 @ 4:15pm

    All I can think of when I hear of all these secret orders with random numbers is: "Execute order 66."

    reply to this | link to this | view in thread ]

  12. icon
    Eldakka (profile), Jul 21st, 2014 @ 5:36pm

    Re: He should enter Witness Protection...

    God no.

    If he entered Witness Protection, then the government and it's agencies would absolutely know where to find him to silence him.

    reply to this | link to this | view in thread ]

  13. icon
    tommygilley (profile), Jul 22nd, 2014 @ 6:20am

    A thought crossed my mind this weekend...

    ...If God had a sense of humor this would've been Executive Order 66.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Jul 22nd, 2014 @ 11:41am

    "...White House and the NSA to come clean."

    Cleaning up these two institutions today would leave nothing behind but the shine. They are solid dirt.

    reply to this | link to this | view in thread ]

  15. identicon
    Zonker, Jul 22nd, 2014 @ 4:22pm

    EO 12333

    Take the last three numbers, multiply by the second number and again by the first.

    1*2*333 = 666

    It's the number of the beast.
    This nation is headed for a disaster of biblical proportions:

    Fire and brimstone coming down from the skies!
    Rivers and seas boiling!
    Forty years of darkness!
    Earthquakes, volcanoes...
    The dead rising from the grave!
    Human sacrifice, dogs and cats living together... mass hysteria!

    Who ya gonna call?

    reply to this | link to this | view in thread ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Insider Shop - Show Your Support!

Hide this ad »
Essential Reading
Techdirt Deals
Techdirt Insider Chat
Techdirt Reading List
Hide this ad »
Recent Stories
Hide this ad »


Email This

This feature is only available to registered users. Register or sign in to use it.