In the “Era of Terror,” we are bombarded with justifications of domestic surveillance. Even after a year of Snowden Revelations and analysis, all of the laws and orders justifying warratless spying remain a tangled web.
Below is a list of the major documents used for domestic surveillance.
Executive Order 12333
Drafted by Pres. Reagan, Executive Order 12333 establishes the duties of the many intelligence agencies relating to surveillance on U.S. persons with foreign ties. These relationships include working for foreign corporations, direct or indirect contact with organizations linked to terrorism, and ties to cartels. U.S. persons who fall within the categories will be subject to surveillance collection, retention and data sharing. Even victims of hostage or terrorist crises are subject to surveillance. The links do not have to be direct and are often tenuous at best.
Types of information collected includes, publicly available data, foreign intelligence and counterintelligence especially connected with corporations, information on potential informants and current sources.
Authority to collect on U.S. persons falls under the Attorney General, and it authorizes cooperation of intel agencies and law enforcement.
EO12333 was revised by the following subsequent executive orders: 13284, 13355, and 13470. EO 13284 added the Department of Homeland Security as an intelligence agency. EO 13355 changes the authority from the Director of Central Intelligence to the Department of National Intelligence (DNI). The intelligence agencies report to the president through the DNI.
How it is being used: excessively
Peter Van Buren writes in the Huffington Post,
Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.
Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”
FISA Act 1978
This act was a result of the Church committee. It governs electronic surveillance with or without a warrant on foreign powers and agents working within the US. It established the court system to oversee the NSA. The Patriot Act altered sections of FISA ACT of 1978.
Patriot Act Section 215
Section 215 lays out the guidance concerning certain business records for foreign intelligence and international terrorism investigations. This section allows an investigator to request tangible items like records and documents from a business to aid in foreign intelligence and international terrorism investigations. An investigation may take place under the guidance of 12333 by the Attorney General.
However, if the person investigated is a US person, investigations cannot solely be built on 1st Amendment Activities such as protests or published articles. Under certain records requests like, “library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position).”
Section D legally binds this records request to be committed in secret.
How it is being used: under secret interpretation
“How can the government defend the claim that all records are “relevant to an authorized investigation.” Here, the court compares the order to the Stored Communications Act (SCA), which lets the government get access to records as well. And then the word games begin. Basically, it argues that because one law requires “specific and articulable facts” and that the information must be “material,” while the other (the PATRIOT Act) does not, then the government doesn’t need specific and articulable facts. Rather it just needs “a statement of facts showing there are reasonable grounds to believe that the records are relevant to the investigation.”
Patriot Act Section 216
Section 216 govern pen registers and trap and trace (PR/TT) device. EFF defines these as follows, “Pen registers record the phone numbers that you call, while trap & trace devices record the numbers that call you.
This section authorizes an approval for the installation a PR/TT device “for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution which is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order.”
This section requires anyone tasked with installing a device, whether that be an “electronic communication service, landlord, custodian, or other person shall furnish any information, facilities, or technical assistance” provide all assistance with its installation and operation of the device, and total secrecy of the whole op.
2008 FISA Amendments Section 702
This section governs “procedures for targeting certain persons outside the United States other than United States persons.” After issuing an order, intelligence agencies can target a person for up to 1 year with reauthorizations of such order permitted. The act prohibits intentional targeting of a US person and/or their communications inside or outside the United States.
This section compels electronic communications providers to comply with the Foreign Intelligence Surveillance Court targeting order, and pays a provider for compliance with such order
How it is being used: mass collection of emails, phone calls, chat records, along with other electronic communications.
“Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) last year raised alarm at the possibility of a loophole in section 702 that “could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens.” This is because the FISA Amendments Act does not require the government to identify targets of their surveillance.
“Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats,” Clapper said on Thursday.
Domestic surveillance has been justified based on multiple bills passed by Congress, but evidence suggests most of the spying actually occurs under executive orders – essentially out of reach of congressional oversight or reform. Loopholes, and secret interpretations of the acts drive the surveillance state.
Simply put, there is no solution at the federal level. Congress will not end EO provisions, and the executive branch argues it can’t because they exist as part of the president’s war powers. Acts that are meant to stop certain aspects of spying and reform the NSA such as the USA Freedom Act, only touch the surface and may even expand spying. (See HERE and HERE.)
At OffNow, we focus on state and local action to force change from the bottom up. To learn more about our plan, click HERE.
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