New Revelations on US Surveillance Related Laws: Executive Order 12333 should be on the Reform Agenda

New documents released last week by the American Civil Liberties Union (ACLU) provide a new perspective on the legal basis for the surveillance carried out by the US intelligence agencies. The documents are particularly important in highlighting the areas where legal reform is required – a process that has been under discussion over the last year.

Ever since the Snowden revelations began more than a year ago, tremendous interest has been generated – in the US and worldwide – in the debate around balancing the perceived need for mass surveillance with the right to privacy. The mass surveillance carried on by the 5 eyes and its closest allies on global citizens has prompted worldwide anger, but actions to combat this have by and large failed to take off (at least at the international level).

Despite attempts, in particular by the Brazilian and Germany governments to ensure an international consensus and compact to outlaw mass surveillance (including at the UN 3rd Committee on Human Rights and at the NetMundial, 2014), actual progress has so far proved difficult to achieve – largely thanks to the actions of the US and its allies who view spying on the rest of the world almost as a ‘right’ in pursuit of their foreign policy objectives.

Image Courtesy:aclu.org

Even domestically (in the US), where reform attempts have largely focused on preventing unwarranted spying on American citizens, there is a lack of tangible actions taken to regulate the US intelligence agencies or their present means of information collection.

US intelligence agencies broadly use three legal instruments to conduct their global surveillance – the FISA Act (and amendments thereto), the PATRIOT Act and Executive Order 12333 (with minimization procedures / safeguards contained in US Signals Intelligence Directive 18).

While the first two have attracted widespread attention, in part due to the ability of the government to issue the now infamous NSLs under these laws and the ability of these laws to be used against US citizens, there has been a lack of focus on the executive order that it now appears is actually the basis for most of the surveillance.

Intelligence documents recently released by the ACLU following a FOIA lawsuit, underline the importance of EO 12333 under which the “NSA conducts the majority of its SIGINT activities”.1

EO 12333 is an order that was signed by President Reagan over four decades ago, that authorizes and controls the SIGINT collection of the US intelligence agencies. Interestingly, the Executive Order, which mandates some minimal measures of minimization and executive accountability (in so far as the data of US persons is concerned), considers all foreign parties – commercial or otherwise - as fair game.

The fact that most surveillance is carried out using executive means, rather than a statutory instrument is worrying – this means that not only are measures to ensure accountability lessened but the balance of rights and obligations (or the degree of protection afforded to civil liberties) in the order may be questioned. The intelligence apparatus in the US (as in almost any other country) suffers from severe lack of accountability and transparency, caused in part by the lack of public information about the functioning, processes and powers of these agencies (this information, is often not available to relevant committees of the Congress and Senate also. Notably, the NSA has been caught lying to public officials on numerous occasions regarding their powers and operations all the way back from the Church Committee investigations in the 1970s) . The doctrine of separation and balance of powers ensures that various organs of the state act so as to check arbitrary or unwarranted exercise of power by the other organs. Placing so much faith in a system that functions on the whims of the executive is therefore questionable given the tremendous possibility for abuse of such a powerful mechanism.

Under EO 12333, the minimal oversight mechanisms found under FISA are watered down even further – there is no oversight of actions taken under the EO by either Congress or any Courts. Again, its worth pointing out that the minimal safeguards that do exist under this Order are applicable only to American’s (inter alia in view of the 4th Amendment protections that apply only to Americans).

There is a clear need to revisit the legal authority on which surveillance is carried out. Executive orders are typically meant to either deal with emergency or unforeseen circumstances that cannot be dealt with through legislation (or most commonly to flesh out legislative intent as demonstrated by an existing statute) – the fact that the executive believes it needs such draconian powers must be tested in a public forum – i.e. in Congress. It is clear that an issue as important as this, and one that involves a tricky balancing act between conflicting rights must be publicly debated rather than decided on executive whim and in complete secrecy.

The lack of transparency in the system is only highlighted when once considers the deliberate attempts made by the intelligence community to obfuscate and confuse issues. The documents released by the ACLU last week point to the clear attempts at obfuscation by the intelligence agencies including by using language in non-standard ways or by creating their own definitions for certain terms. For instance, the US intelligence community differentiates between “gathering” and “collecting” information – a difference that really has no basis in fact or law. Information is only “collected” when processed by a human person – till such point of time it constitutes “gathering” (even if it has physically been collected and retained by the agencies). 2This also explains how intelligence officials and politicians can, with a straight face, claim that they do not collect information on the whole world or deny illicit spying – they are talking a completely different language.

The documents also highlight how the US governments surveillance system is built for more than just collecting information on terrorists. It is made clear that the surveillance powers enjoyed by the US intelligence community are extremely broad, and allow the government to monitor any communication that contains "foreign intelligence information” – a phrase that can encompass virtually any communication around the world.

Given that the US is clearly not likely to – for a variety of reasons –change its stance on the surveillance of foreigners, it is even more important that other countries ensure that international and domestic norms are laid down to prevent such practices.

In India, it is therefore necessary that we pass appropriate legislation that can act to protect the safety of its citizens’ data. Issues such as cross border data flows, ownership of data, under what circumstances data can be released to foreign authorities, etc. must be detailed in a law passed subsequent to public debate, rather than dealt with in the haphazard manner that it now is.

Equally, it is important that operational activities take into account what we know about the US intelligence system and work to deny easy access to global citizens information. One instance is the ubiquitous usage of American service providers for general online services such as email, social media etc. Governments across the world must try and ensure that alternative platforms that serve local needs (and crucially are not susceptible to legal orders from US intelligence agencies) are built and popularized. Similarly, we must ensure that third party agreements signed by intelligence authorities with their US counterparts, under which the American government is given access to foreign citizens’ data (in exchange for the US agencies occasionally helping out their foreign counterparts who lack similar technical capabilities) are immediately stopped or amended.3

References:

(1) Cora Currier & Ryan Devereaux, “The Ghost of Ronald Reagan Authorises Most NSA Spying”, October 6, 2014, https://firstlook.org/theintercept/2014/09/29/new-documents-confirm-expansive-spying-powers-reagan-era-order/

(2) Alex Abdo, “New Documents Shed light on One of NSAs Most Popular Tools”, September 29, 2014, https://www.aclu.org/blog/national-security/new-documents-shed-light-one-nsas-most-powerful-tools

Legal Fact Sheet: Executive Order 12333, June 19, 2013, available at  https://www.aclu.org/national-security-technology-and-liberty/executive-order-12333-foia-lawsuit

See:  Defense Intelligence Management Document, Intelligence Law Handbook, Defense HUMINT Service, August, 2004, available at https://www.aclu.org/national-security-technology-and-liberty/executive-order-12333-foia-lawsuit

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