Declassified Documents Shows The CIA Is Using A 1981 Executive Order To Engage In Domestic Surveillance

from the bypassing-checks,-balances,-and-oversight-with-Executive-power dept

When most people think of the CIA (Central Intelligence Agency), they think of a foreign-facing spy agency with a long history of state sponsored coup attempts (some successful!), attempted assassinations of foreign leaders, and putting the US in the torture business. What most people don't assume about the CIA is that it's also spying on Americans. After all, we prefer our embarrassments to be foreign-facing -- something that targets (and affects) people we don't really care about and governments we have been told are irredeemable.

An entity with the power to provoke military action halfway around the world has periodically shown an unhealthy interest in domestic affairs, which are supposed to be off-limits for the nation's most morally suspect spies. The CIA (along with the FBI) routinely abuses its powers to perform backdoor searches of foreign surveillance stashes to locate US-based communications. It also has asked the FBI to do its dirty secondhand surveillance work for it in order to bypass restrictions baked into Executive Order 12333 -- an executive order issued by Ronald Reagan that significantly expanded surveillance permissions for US agencies.

Perhaps most significantly -- at least in terms of this report -- the order instructed other government agencies to be more compliant with CIA requests for information. Since its debut in December 1981, the order has been modified twice (by George W. Bush) to give the government more power.

That's the authority the CIA has been using to spy on Americans, as a recent PCLOB (Privacy and Civil Liberties Oversight Board) report shows. The PCLOB performed a "deep dive" in CIA domestic spying at the request of Senators Ron Wyden and Martin Heinrich. After its completion, the senators asked for an unclassified version of the PCLOB's report. That report has arrived. And, according to Ron Wyden's statements, it shows the CIA is utilizing EO 12333 to spy on Americans and bypass the protections (however minimal) the FISA court provides to Americans.

“FISA gets all the attention because of the periodic congressional reauthorizations and the release of DOJ, ODNI and FISA Court documents,” said Senators Wyden and Heinrich in response to the newly declassified documents. “But what these documents demonstrate is that many of the same concerns that Americans have about their privacy and civil liberties also apply to how the CIA collects and handles information under executive order and outside the FISA law. In particular, these documents reveal serious problems associated with warrantless backdoor searches of Americans, the same issue that has generated bipartisan concern in the FISA context.”

Wyden and Heinrich called for more transparency from the CIA, including what kind of records were collected and the legal framework for the collection. The PCLOB report noted problems with CIA’s handling and searching of Americans’ information under the program.

Even if the spying isn't direct, the outcome is pretty much identical to direct targeting. With EO 12333, the CIA obtains the compliance from other federal agencies envisioned by Ronald Reagan back in 1981 as his administration ran headlong into the CIA-implicating Iran-Contra scandal.

Domestic data is supposed to be "masked" if incidentally acquired by foreign-facing surveillance collections. Sometimes this simply doesn't happen. Sometimes unmasking occurs without proper permission or oversight. The FBI uses this to its advantage. So does the CIA. But the FBI handles domestic terrorism. The CIA does not. That makes the CIA's abuse possibly more egregious than the FBI's numerous violations of the same restrictions placed on domestic surveillance via foreign interception of communications by the NSA.

The PCLOB report [PDF] shows the CIA has obtained bulk financial data from other sources, possibly without proper masking of incidentally-collected US persons data. According to the CIA's response to the report, the only thing separating CIA analysts from US persons' data and communications is a pop-up box warning them that access may be illegal. This is only a warning. It does not (nor could it) prevent analysts from obtaining data they shouldn't have access to without explicit permission.

How extensive this "incidental" collection is remains to be seen. And there's a good chance no one will ever know how often this pop-up was ignored to collect data generated by US citizens and residents. Much of the report is redacted and what was shared with the PCLOB was limited to whatever the CIA felt like sharing. The oversight of programs like these is deliberately limited by the Executive Order -- one that made the assumption some things (like national security) are too important to be done properly or overseen directly.

The report does note that the CIA has internal processes to limit abuse of backdoor searches. But it also points out the CIA has read EO 12333 and its modifications to mean it can do what it wants when it wants without worrying too much about straying outside of the generous lines drawn by this Executive Order.

The limits include a requirement to use the “least intrusive collection techniques feasible within the United States or directed against United States persons abroad.” Annex A implements E.O. 12333’s “least intrusive collection technique” requirement regarding activities outside of the United States involving U.S. persons. Given that the Executive Order’s restriction only applies to activities in the United States or activities directed against U.S. persons abroad, the CIA interprets the language of Annex A to only apply to collections directed against USPs abroad. Annex A does not require [redacted] to apply the least intrusive collection technique to collections covered by this report, which are generally not directed against USPs.

There's the exploitable loop: the EO only applies to collections "directed" at US persons. Since all information is pulled from foreign-facing surveillance collections that "incidentally" collect US persons data, the resulting collection the CIA has access to is completely legal. Analysts access these collections specifically to find US persons' data, but because no agency deliberately targeted US persons, it's all above board.

This is the exploitation of foreign bulk collections to obtain information about Americans. While some may argue the damage is minimal because it only accesses information (financial records) unlikely to have an established expectation of privacy, people obviously know their financial institutions track their purchases, but that's not the same thing as people assuming the government should be able to access records -- which may contain sensitive information -- using nothing more than an Executive Order that was ostensibly written to strengthen foreign surveillance efforts.

And that's only what can be observed from this redacted release. This isn't the CIA's only attempt to hoover up info on US persons via side channels. Wyden's letter hints at FISA reforms, which likely refers to domestic phone records the NSA used to collect in bulk -- a program that was specifically targeted by Congress following the Snowden revelations. What's contained in this report is a narrow examination of one part of the CIA's exploitation of bulk collections to obtain US persons data. And if it feels this confident about its nearly unrestricted ability to perform these backdoor searches, examinations of other aspects of this program are likely to find other domestic data is ending up in the hands of CIA analysts who are supposed to be focused on foreign activities.

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Filed Under: cia, domestic surveillance, eo 12333, executive order, pclob, ron wyden, surveillance