Focusing public attention on emerging privacy and civil liberties issues

Executive Order 12333

Background

EPIC has a long-standing interest in public oversight of government surveillance, including activities conducted under Executive Order 12333. As Professor Francesca Bignami has explained, "[t]he NSA's original mandate was considerably elaborated and extended in Executive Order 12,333, promulgated by President Reagan in 1981." EPIC has tracked the government's reliance on EO 12333, particularly the reliance on Section 1:12(b)(13), which authorizes the NSA to provide "such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement." This provision appears to have opened the door for the NSA's broad and unwarranted surveillance of U.S. and foreign citizens.

Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981. It established broad new surveillance authorities for the intelligence community, outside the scope of public law. EO 12333 has been amended three times. It was amended by EO 13284 on January 23, 2003 and was then amended by EO 13555 on August 27, 2004. EO 13555 was subtitled "Strengthened Management of the Intelligence Community" and reflected the fact that the Director of National Intelligence (DNI) now existed as the head of the intelligence community, rather than the CIA which had previously served as the titular head of the IC. EO 13555 partially supplemented and superseded EO 12333. On July 30, 2008, President George W. Bush signed EO 13470, which further supplemented and superseded EO 12333 to strengthen the role of the Director of National Intelligence.

Since the Snowden revaluations there has been a great deal of discussion regarding the activities of the IC community, but relatively little attention has been paid to EO 12333. EO 12333 often serves an alternate basis of authority for surveillance activities, above and beyond Section 215 and 702. As Bruce Schneier has emphasized, "Be careful when someone from the intelligence community uses the caveat "not under this program," or "not under this authority"; almost certainly it means that whatever it is they're denying is done under some other program or authority. So when[NSA General Counsel Raj] De said that companies knew about NSA collection under Section 702, it doesn't mean they knew about the other collection programs." Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, has said in August 2013 that, "The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee's focus on those activities." In July 2014, a former Obama State Department official, John Napier Tye, wrote an Op-Ed in the Washington Post calling for greater scrutiny of EO 12333. Tye noted that "based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215."

Top News

  • Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain: The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs. (May. 1, 2014)
  • New Limits on NSA Telephone Record Program Established, Authority Expires March 28: The Foreign Intelligence Surveillance Court has granted the government’s motion to limit access by the NSA to the bulk telephone records provided by US telephone companies. Under the new rules, the government cannot "query" the telephone metadata until after the court finds that there is a "reasonable, articulable suspicion that the selection term is associated with" a terrorist organization. The new rules also limit query results to telephone numbers within "two hops" of the selector. President Obama announced the new legal requirement during his recent speech on surveillance reform, when he committed to end the NSA’s bulk record collection program. The NSA's authority to force US telephone companies to turn over records on all their customers will expire on March 28th. The President has recommended that the Intelligence Community and the Attorney General propose an alternative to the bulk collection program prior to that deadline. For more information, see EPIC: FISC and EPIC: NSA Verizon Phone Record Monitoring. (Feb. 7, 2014)
  • NY Judge Rules NSA Program Legal, Split Emerges Among Courts: A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 30, 2013)
  • Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment: A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 16, 2013)
  • Supreme Court to Consider EPIC Challenge to NSA Program This Week: The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. EPIC has asked the Court to overturn an order of the Foreign Intelligence Surveillance Court that compelled Verizon to produce all of the telephone records of all of its customers to the NSA. EPIC said that this order clearly exceeded the authority of the surveillance court. The EPIC Petition was distributed to the Justices last week along with briefs by former Church committee members and prominent scholars in information law, federal jurisdiction, and constitutional law, who all urged the Supreme Court to grant the EPIC petition. For more information, see In re EPIC. (Nov. 12, 2013)
  • Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program: The Foreign Intelligence Surveillance Court (FISC) has released an Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been criticized by legal scholars. For more information, see In re EPIC. (Sep. 20, 2013)
  • FISA Court: NSA Violated Fourth Amendment and the FISA: A newly released opinion by the Foreign Intelligence Surveillance Court found that the NSA violated the Fourth Amendment and the Foreign Intelligence Surveillance Act when it acquired tens of thousands of wholly-domestic Internet communications. According to the opinion of the former Presiding Judge of the FISA Court, the NSA acquired more than 250 Million Internet communications per year. Roughly 9% of these communications are obtained via "upstream collection" and more than 50,000 each year contain domestic communications. The FISC found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment given the large number of wholly domestic communications obtained. The FISC also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. For more information, see EPIC: Foreign Intelligence Surveillance Court. (Aug. 22, 2013)

Structure of EO 12333

EO 12333 is divided into three parts (this describes the current EO 12333 as amended). The first part is the bulk of the order, describing the overall goals, directions, duties, and responsibilities of U.S. intelligence efforts. The second part applies to the actual conduct of intelligence activities and includes a prohibition on assassination. The third part consists of general provisions and includes general definitions, implementation, and the requirement of compliance with congressional oversight.

Part 1: Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts

  • 1:1 Goals
  • 1.2 The National Security Council
  • 1.3 Director of National Intelligence
  • 1.4 The Intelligence Community
  • 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies
  • 1.6 Heads of Elements of the Intelligence Community
  • 1.7 Intelligence Community Elements
    • a) The Central Intelligence Agency
    • b) The Defense Intelligence Agency
    • c) The National Security Agency
    • d) National Reconnaissance Office
    • e) The National Geospatial-Intelligence Agency
    • f) The Intelligence and Counterintelligence Elements of the Army, Navy, Air Force, and Marine Corps
    • g) Intelligence Elements of the Federal Bureau of Investigation
    • h) The Intelligence and Counterintelligence Elements of the Coast Guard
    • i) The Bureau of Intelligence and Research, Department of State; The Office of Intelligence and Analysis, Department of the Treasury; The Office of National Security Intelligence, Drug Enforcement Administration; The Office of Intelligence and Analysis, Department of Homeland Security; and the Office of Intelligence and Counterintelligence, Department of Energy.
    • j) The Office of the Director of National Intelligence.
  • 1.8 Department of State
  • 1.9 The Department of the Treasury
  • 1.10 The Department of Defense
  • 1.11 The Department of Homeland Security
  • 1.12 The Department of Energy
  • 1.13 The Federal Bureau of Investigation

Part 2: Conduct of Intelligence Activities

  • 2.1 Need
  • 2.2. Purpose
  • 2.3 Collection of Information
  • 2.4 Collection Techniques
  • 2.5 Attorney General Approval
  • 2.6 Assistance to Law Enforcement and Other Civil Authorities
  • 2.7 Contracting
  • 2.8 Consistency With Other Laws
  • 2.9 Undisclosed Participation in Organizations Within the United States
  • 2.10 Human Experimentation
  • 2.11 Prohibition on Assassination
  • 2.12 Indirect Participation
  • 2.13 Limitation on Covert Action

Part 3: General Provisions

  • 3.1 Congressional Oversight
  • 3.2 Implementation
  • 3.3 Procedures
  • 3.4 References and Transition
  • 3.5 Definitions
  • 3.6 Revocation
  • 3.7 General Provisions

EPIC's Interest

In 2012, EPIC sought and obtained from the Office of the Director of National Intelligence the guidelines for the National Counterterrorism Center (NCTC). The NCTC is a part of the intelligence community, which operates under the authority of EO 12333. EPIC has stressed through its comments, statements, and testimony that U.S. intelligence agencies should not exercise broad authority without oversight. Executive Order 12333 is such a case, an order that has never been subject to meaningful oversight by either courts or Congress. Senator Dianne Feinstein, the Chair of the Senate Intelligence Committee, referring to EO 12333, has said, "I don't think privacy protections are built into it. It's an executive policy. The executive controls intelligence in the country."

Ronald Reagan executed the order in 1981. Executive Order 12333 authorizes the collection of not only metadata, but of the actual communications of US citizens, so long as the communications are collected "incidentally." These communications can then be held for five years, as described by a document that the Director of National Intelligence recently declassified. The NSA has used Executive Order 12333 to justify, among other things, the interception of unencrypted data between Google and Yahoo data centers. None of the currently proposed reforms address the over-broad surveillance authorities established by Executive Order 12333. EPIC has long urged PCLOB to move beyond their Section 215 and Section 702 investigations and examine the scope of information under EO 12333 and the need for greater public oversight. As EPIC Advisory Board member Steven Aftergood has noted, "If they deviated from their own rules, how would it be discovered? I am not satisfied that they have an answer to that question."

Resources

Executive Orders

Governmental Resources

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