Monday, July 21, 2014
And the White House is complicit in its continued neglect of our civil liberities. Writing last week in WaPo, former State Department employee John Napier Tye explained that neither metadata nor the content of private communications by U.S. citizens is protected from NSA peeping. Indeed, as a result of Executive Order 12333, many private communications remain exposed without even minimal Congressional oversight (such that it is, right Sen. Feinstein?). Here's the breakdown:
Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.
Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court...
Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.
Perhaps you don't give two hoots about the NSA's activities abroad. You live in 'Merica, and your communications stay here. Well tighten your belt... As Tye explains:
A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.
So, forget privacy.
For her part, Sen. Feinstein cares enough about the unchecked surveillance of US citizens to pretend to care. But only time will tell whether or not her concerns bear fruit, for the story-told creates considerable doubt as to her seriousness.