Executive Order 12333

Background

EPIC has a long-standing interest in public oversight of government surveillance, including activities conducted under Executive Order 12333. As Professor Francesca Bignami has explained, "[t]he NSA's original mandate was considerably elaborated and extended in Executive Order 12,333, promulgated by President Reagan in 1981." EPIC has tracked the government's reliance on EO 12333, particularly the reliance on Section 1:12(b)(13), which authorizes the NSA to provide "such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement." This provision appears to have opened the door for the NSA's broad and unwarranted surveillance of U.S. and foreign citizens.

Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981. It established broad new surveillance authorities for the intelligence community, outside the scope of public law. EO 12333 has been amended three times. It was amended by EO 13284 on January 23, 2003 and was then amended by EO 13555 on August 27, 2004. EO 13555 was subtitled "Strengthened Management of the Intelligence Community" and reflected the fact that the Director of National Intelligence (DNI) now existed as the head of the intelligence community, rather than the CIA which had previously served as the titular head of the IC. EO 13555 partially supplemented and superseded EO 12333. On July 30, 2008, President George W. Bush signed EO 13470, which further supplemented and superseded EO 12333 to strengthen the role of the Director of National Intelligence.

Since the Snowden revaluations there has been a great deal of discussion regarding the activities of the IC community, but relatively little attention has been paid to EO 12333. EO 12333 often serves an alternate basis of authority for surveillance activities, above and beyond Section 215 and 702. As Bruce Schneier has emphasized, "Be careful when someone from the intelligence community uses the caveat "not under this program," or "not under this authority"; almost certainly it means that whatever it is they're denying is done under some other program or authority. So when[NSA General Counsel Raj] De said that companies knew about NSA collection under Section 702, it doesn't mean they knew about the other collection programs." Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, has said in August 2013 that, "The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee's focus on those activities." In July 2014, a former Obama State Department official, John Napier Tye, wrote an Op-Ed in the Washington Post calling for greater scrutiny of EO 12333. Tye noted that "based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215."

Top News

  • Senator Leahy Calls for FISA Reforms: The Senate Judiciary Committee held a hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “PRISM” program. EPIC testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since called for the end of the section 702. This week Senator Patrick Leahy (D-VT) stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry." (May. 13, 2016)
  • Intelligence Court Skeptical of Some FISA Applications: The Department of Justice has published the 2015 FISA report, which summarizes the use of the Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the FISA Court (FISC). Overall, the Government’s applications for FISA warrants has declined since 2003  but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders. (May. 3, 2016)
  • Intelligence Court Orders Government to Report on PRISM Collection: Three decisions by the Foreign Intelligence Surveillance Court (FISC) were made public this week. The Court identified serious “compliance and implementation issues” related to the Section 702 ("PRISM") surveillance program. The FISC found that the NSA did not purge personal data as required by minimization procedures, and also that the FBI failed to exclude attorney-client communications. In 2012, EPIC testified before Congress and recommended the publication of FISC opinions to facilitate public oversight. (Apr. 20, 2016)
  • Court Suspends NSA Phone Record Collection Program : A federal court in Washington D.C. has ordered the National Security Administration to halt the bulk collection of domestic telephone records, ruling that the indiscriminate collection violates the Fourth Amendment. Following the USA Freedom Act, the telephone records program will expire at the end of the month. The government has moved to stay the judge's order. In 2013, EPIC brought the first challenge to the NSA surveillance program in the Supreme Court. EPIC has also testified before Congress on the need to reform the Foreign Intelligence Surveillance Court, and led a broad coalition urging the President to end the NSA surveillance program. (Nov. 10, 2015)
  • Intelligence Director Says NSA Access to Bulk Phone Record Data Will End: The Director of National Intelligence announced today that the NSA analysis of "section 215" telephone records previously gathered will end when the USA FREEDOM Act goes into effect on November 29, 2015. Earlier this month, the U.S. Surveillance Court ruled that the NSA could continue collecting records during a 180 day transition period, despite an earlier decision finding the program was unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Jul. 27, 2015)
  • Surveillance Court Ignores Court Ruling, Reauthorizes NSA Bulk Collection Program: The Foreign Intelligence Surveillance Court has reauthorized the collection of domestic telephone records for 180 days. The Surveillance Court ignored the recent decision of the Federal Court of Appeals, which held that the NSA bulk collection program is unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. Congress then passed the Freedom Act to end program, but the FISC didn't get the memo. (Jul. 1, 2015)
  • Senate Passes FREEDOM Act, Ends NSA Bulk Collection: The Senate has passed the USA FREEDOM Act, sponsored by Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-TX). The Act, which the President is expected to sign, ends the NSA bulk collection of domestic telephone records and establishes new transparency and accountability rules for the Foreign Intelligence Surveillance Court. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Jun. 2, 2015)
  • House Passes Surveillance Reform Bill, Deadline Looms for Senate: The House of Representatives has passed the USA Freedom Act of 2015. The bill would end the NSA's controversial domestic telephone record collection program--a program the Second Circuit Court of Appeals recently ruled was unlawful. The Freedom Act would also establish new transparency requirements for the Foreign Intelligence Court, recommended by EPIC in testimony before the House Judiciary Committee in 2012. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. The Senate is expected to take up the bill before the June 1 expiration of Section 215 of the Patriot Act. (May. 14, 2015)
  • House Committee Approves Surveillance Reform Bill: The House Judiciary Committee voted to send the USA FREEDOM Act of 2015 to the House of Representatives for further consideration prior to the June 1 Patriot Act expiration deadline. The bill would end the NSA's controversial domestic telephone record collection program. The bill would also establish new transparency requirements for Intelligence Court Orders, recommended by EPIC in testimony before the House Judiciary Committee. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. (May. 1, 2015)
  • Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain: The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs. (May. 1, 2014)

Structure of EO 12333

EO 12333 is divided into three parts (this describes the current EO 12333 as amended). The first part is the bulk of the order, describing the overall goals, directions, duties, and responsibilities of U.S. intelligence efforts. The second part applies to the actual conduct of intelligence activities and includes a prohibition on assassination. The third part consists of general provisions and includes general definitions, implementation, and the requirement of compliance with congressional oversight.

Part 1: Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts

  • 1:1 Goals
  • 1.2 The National Security Council
  • 1.3 Director of National Intelligence
  • 1.4 The Intelligence Community
  • 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies
  • 1.6 Heads of Elements of the Intelligence Community
  • 1.7 Intelligence Community Elements
    • a) The Central Intelligence Agency
    • b) The Defense Intelligence Agency
    • c) The National Security Agency
    • d) National Reconnaissance Office
    • e) The National Geospatial-Intelligence Agency
    • f) The Intelligence and Counterintelligence Elements of the Army, Navy, Air Force, and Marine Corps
    • g) Intelligence Elements of the Federal Bureau of Investigation
    • h) The Intelligence and Counterintelligence Elements of the Coast Guard
    • i) The Bureau of Intelligence and Research, Department of State; The Office of Intelligence and Analysis, Department of the Treasury; The Office of National Security Intelligence, Drug Enforcement Administration; The Office of Intelligence and Analysis, Department of Homeland Security; and the Office of Intelligence and Counterintelligence, Department of Energy.
    • j) The Office of the Director of National Intelligence.
  • 1.8 Department of State
  • 1.9 The Department of the Treasury
  • 1.10 The Department of Defense
  • 1.11 The Department of Homeland Security
  • 1.12 The Department of Energy
  • 1.13 The Federal Bureau of Investigation

Part 2: Conduct of Intelligence Activities

  • 2.1 Need
  • 2.2. Purpose
  • 2.3 Collection of Information
  • 2.4 Collection Techniques
  • 2.5 Attorney General Approval
  • 2.6 Assistance to Law Enforcement and Other Civil Authorities
  • 2.7 Contracting
  • 2.8 Consistency With Other Laws
  • 2.9 Undisclosed Participation in Organizations Within the United States
  • 2.10 Human Experimentation
  • 2.11 Prohibition on Assassination
  • 2.12 Indirect Participation
  • 2.13 Limitation on Covert Action

Part 3: General Provisions

  • 3.1 Congressional Oversight
  • 3.2 Implementation
  • 3.3 Procedures
  • 3.4 References and Transition
  • 3.5 Definitions
  • 3.6 Revocation
  • 3.7 General Provisions

EPIC's Interest

In 2012, EPIC sought and obtained from the Office of the Director of National Intelligence the guidelines for the National Counterterrorism Center (NCTC). The NCTC is a part of the intelligence community, which operates under the authority of EO 12333. EPIC has stressed through its comments, statements, and testimony that U.S. intelligence agencies should not exercise broad authority without oversight. Executive Order 12333 is such a case, an order that has never been subject to meaningful oversight by either courts or Congress. Senator Dianne Feinstein, the Chair of the Senate Intelligence Committee, referring to EO 12333, has said, "I don't think privacy protections are built into it. It's an executive policy. The executive controls intelligence in the country."

Ronald Reagan executed the order in 1981. Executive Order 12333 authorizes the collection of not only metadata, but of the actual communications of US citizens, so long as the communications are collected "incidentally." These communications can then be held for five years, as described by a document that the Director of National Intelligence recently declassified. The NSA has used Executive Order 12333 to justify, among other things, the interception of unencrypted data between Google and Yahoo data centers. None of the currently proposed reforms address the over-broad surveillance authorities established by Executive Order 12333. EPIC has long urged PCLOB to move beyond their Section 215 and Section 702 investigations and examine the scope of information under EO 12333 and the need for greater public oversight. As EPIC Advisory Board member Steven Aftergood has noted, "If they deviated from their own rules, how would it be discovered? I am not satisfied that they have an answer to that question."

Resources

EPIC's FOIA Requests

In mid-2014, EPIC requested from multiple government agencies "records related to the government's surveillance and collection of electronic communications outside the United States under EO 12333, and other related EOs, including the collection and interception of messages, metadata, and other transactional and business records regarding e-mail, telephone, and Internet usage."

The Office of the Director of National Intelligence also announced on February 3, 2015, that pursuant to Presidential Policy Directive 28 the members of the Intelligence Community have revised their policies and adopted new rules regarding the retention and minimization of signals intelligence. Those policies are linked below:

Documents Obtained

Executive Orders

Governmental Resources

Other Resources

News Reports

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