A former State Dept. official believes a Reagan-era order gives intelligence agencies too much leeway.
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A former State Department official has raised awareness about a Reagan-era practice that permits spying on U.S. citizens with little oversight. In an op-ed for the Washington Post, John Napier Tye writes that Executive Order 12333 should raise red flags for Americans concerned about the boundaries of surveillance. "Even after all the reforms President Obama has announced," Tye writes, "some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them."
Executive Order 12333 was approved in 1981. It permits government intelligence agencies to monitor certain content without a court order or warrant. Metadata, the digital trail that reveals users' locations and certain actions, may also be monitored
Tye points to a loophole that permits extended reach. When communications are "incidentally" collected, the information is allowed to be kept. This turn of phrase, Tye writes, "places no limits on the volume of communications by U.S. persons that may be collected and retained." Because this order does not demand consent from any party before surveillance, Tye argues that individual companies are responsible for using their own security in order to keep their information private.
Unlike fellow whistle blower Edward Snowden, who leaked information about NSA surveillance, Tye has not disclosed classified information. Indeed, Tye's piece may not be a huge revelation to those who closely follow the ins and outs of government monitoring.
"Tye's op-ed, unfortunately, only confirms our fears," wrote Alex Abdo, a staff attorney at the American Civil Liberties Union. "We have yet to get a full and clear explanation from the NSA of its various surveillance authorities, particularly as they impact U.S. citizens and residents. Instead, we have received half-answers and artfully crafted denials."
Tye filed a complaint with the State Department claiming that Executive Order 12333 violates the Fourth Amendment. He has also voiced concern to both the House and Senate intelligence committees and the inspector general of the National Security Agency. "This act of conscience illuminates yet another path a surveillance whistle blower can take. If more current and former federal officials believe the NSA is in flagrant violation of the Fourth Amendment, they should consider declaring themselves too," wrote Conor Friedersdorf at the Atlantic. "I wonder what he saw but isn't revealing."
Sen. Dianne Feinstein, D-Calif., chairman of the Senate Select Committee on Intelligence, said last year that the committee cannot "sufficiently" monitor Executive Order 12333. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”
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