What is arguably the most powerful of the U.S. government's surveillance authorities is also the most secretive, and it operates with the least amount of oversight.
Today, we're releasing a new set of documents concerning Executive Order 12333 that we -- alongside the Media Freedom and Information Access Clinic at Yale Law School -- obtained in an ongoing Freedom of Information Act lawsuit. EO 12333 hasn't received much public attention to date, but the government's prior disclosures in our suit have shown that the executive order in fact governs most of the NSA's surveillance. In the NSA's own words, EO 12333 is "the primary source of the NSA's foreign intelligence-gathering authority."
Surveillance conducted under EO 12333 is implemented almost entirely by the executive branch, without review by Congress or the courts. EO 12333 lacks even the plainly inadequate legislative and judicial checks on the two more well-known surveillance authorities -- Section 215 of the Patriot Act and the FISA Amendments Act.
Some of the most significant conclusions to be drawn from the new documents:
"It is not possible" for the NSA to adequately protect the privacy of innocent Americans swept up in its dragnet.
Even when the NSA is "targeting" foreigners abroad, the agency sweeps up vast quantities of innocent Americans' communications. This is true when the agency is conducting surveillance under FISA, and it's just as true when the agency is conducting surveillance under EO 12333.
But we don't yet have a full understanding of EO 12333's implications for Americans' privacy. That's in part because of the secrecy surrounding EO 12333, and in part because, as one NSA memo acknowledges, the agency itself often doesn't know whether it's handling communications to or from Americans:
The government frequently argues that its sweeping, "collect it all" approach to surveillance is lawful because it follows certain procedures when searching and sharing the information it gathers. These "minimization procedures" vary by agency and by surveillance program, but in general, they require special treatment of Americans' communications to mitigate the intrusion on privacy rights.
But if the NSA can't -- or won't -- ensure that it is correctly identifying Americans' communications when it vacuums them up, how can the public trust that the NSA is properly safeguarding Americans' private information? Furthermore, if the NSA doesn't know what it's collecting, how can it effectively assess its compliance with its own rules?NSA analysts may be laughing at your sex tape.
One of the other new documents, another internal NSA memo, considers whether "sharing of voice cuts among signals intelligence (SIGINT) analysts for purposes other than official ones constitutes a violation of any laws, policies, or procedures." Unsurprisingly, the deputy general counsel concludes that it's not permitted:
The memo appears to be a response to allegations made in 2008 by a former NSA military intercept operator, David Murfee Faulk, that he and others routinely circulated "good phone sex" recordings, or "cuts," around the office. Faulk and another operator also alleged that the NSA had eavesdropped on hundreds of U.S. citizens overseas as they called home -- capturing not only phone sex, but more mundane pillow talk as well.