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

from the they-matter-too dept

Tue, Dec 31st 2013 11:57am — Mike Masnick

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.

Eo 12333 Foia Complaint (PDF)Eo 12333 Foia Complaint (Text)

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Filed Under: executive order 12333, lawsuits, nsa, spying, surveillance
Companies: aclu

7 Comments

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The First Word

“

12333? I have the same combination on my luggage!

—Nick

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Anonymous Coward, 31 Dec 2013 @ 12:19pm

As usual, the administration and the DOJ will fight this every step of the way, hoping to drag it out until Obama is out of office.

The reasoning behind each attempt to stonewall gets more tenuous every time than the previous attempt. We've all the government transparency money and power can throw at preventing it.
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Anonymous Coward, 31 Dec 2013 @ 12:47pm

as welcome as this is, i was hoping to hear that the appeal over the case tossed by judge Pauley was available and even better, that he had been summoned to explain how he reached a verdict using evidence that he didn't have. still, waiting a little longer should do no harm!
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art guerrilla (profile), 31 Dec 2013 @ 1:39pm

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 ! ! !
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John Fenderson (profile), 31 Dec 2013 @ 1:43pm

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.)
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Nick (profile), 31 Dec 2013 @ 11:12pm

12333? I have the same combination on my luggage!
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alternatives(), 1 Jan 2014 @ 8:08am

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?
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John Fenderson (profile), 2 Jan 2014 @ 9:56am

Re: Re: Re: i'm not going to stop bitching about this...
Their actions have to be allowed by existing law. An EO that says they should do something that is not legal does not make that act legal -- so if you're the victim of it, you have legal recourse.
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