Ever persistent, Wyden has returned with another set of questions [PDF] regarding NSA surveillance. This one pertains to the least-discussed surveillance authorization and the one almost everyone — including members of oversight committees — knows nearly nothing about: Executive Order 12333.

Like Section 702, there‘s a good probability intelligence gathered under this authority is being used by domestic agencies. Backdoor searches of NSA intel have been unofficial common knowledge for years now, so there‘s very little reason to believe the NSA‘s most mysterious authority doesn‘t have its own built-in peepholes for the FBI and other federal agencies.

Way back on December 4, 1981 before the internet, smart phones and smart televisions were even thought of and when computers took up entire rooms and telephones were attached to walls with cords, then President Ronald Reagan signed an Executive Order that would change the face of spying by the United States and its massive intelligence network. The Executive Order, entitled “United States Intelligence Activities“, also known as Executive Order 12333, laid out the goals, directions, duties and responsibilities of the American global intelligence effort. While the U.S. intelligence community had the right to conduct surveillance prior to EO 12333, the community’s original mandate was considerably extended and detailed under EO 12333.

(17.1.2017) Die Anordnung 12333 besagt, dass die NSA Telefon- und E-Mail- Kommunikation von Nicht-US-Bürgern ohne richterlichen Beschluss eingesehen werden dürfen. Zudem erlaube sie das „unabsichtliche“ Sammeln von Daten von US-Bürgern.

(13.3.2017) Another less common legal proceeding, known as 12333, or “twelve triple-three,” manages U.S. intelligence-gathering offshore. It authorizes the attorney general to permit searches „of communications to or from an American for the purposes of targeting that American – again, as long as the attorney general determines that person is an agent of a foreign power,“ according to The Hill.

Further, the National Security Agency can upload that intercepted intelligence to an online repository through which other intel agencies can search.

Another, less well-understood surveillance authority comes from a Reagan-era executive order known as 12333, or “twelve triple-three.”

EO 12333 — much of which is redacted — governs U.S. intelligence gathering overseas. It has come under fire from civil liberties advocates, who say it gives the intelligence community a blank check to regulate its own spying.

(30.1.2017) So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

(12.1.2017) Die öffentlich gemachte Anordnung passt das berüchtigte präsidiale Dekret 12333 aus der Amtszeit Ronald Reagans an…

(10.9.2014) Am 29. August 2014 veröffentlichten, angeführt von der „American Civil Liberties Union“ und der „Electronic Frontier Foundation“, über 40 Organisationen, 4 Kongressabgeordnete, sowie ehemalige Regierungsbeamte der Vereinigten Staaten von Amerika über accessnow.org einen offenen Brief an ihren amtierenden Präsidenten Barack Obama:

„Wir rufen den Präsidenten dazu auf, alle gegenwärtigen und zukünftigen Rechtsmeinungen („legal opinion“) oder Interpretationen betreffend der Überwachung unter Executive Order 12333 und den darunter erlassenen überwachungsbezogenen Regulatorien zu deklassifizieren (Anm: die Geheimhaltung aufzuheben) und öffentlich zu machen. Geheimes Gesetz ist eine Bedrohung für die Demokratie.

Wir fordern sowohl den Präsidenten, als auch das Privacy and Civil Liberties Oversight Board dazu auf, eine untersuchende Prüfung der Überwachung unter E.O. 12333 durchzuführen, auf der Deklassifizierung von Information zu bestehen die der Öffentlichkeit helfen würde das Wesen und das Ausmaß dieser Überwachung zu verstehen, und so schnell wie möglich Mechanismen und spezifische Schritte vorzuschlagen um oben gemachte Empfehlungen umzusetzen.“

Rund 32 Jahre nach ihrem Erlass am 4. Dezember 1981 war in den USA Executive Order 12333 als eine zentrale Ermächtigung der US-Regierung bei ihrer willkürlichen Massenspionage von Geheimdiensten und assoziierten Konsortien gegen die eigene Bevölkerung („Totalüberwachung“) begriffen worden.

(5. November 2013)

The New York Times reported this morning that the Obama administration has put into place new rules allowing the NSA to disseminate “raw signals intelligence information.” According to a 23-page, mostly declassified copy of the procedures, released today, Director of National Intelligence James Clapper signed the rules on Dec. 15 and Attorney General Loretta Lynch signed them on Jan. 3.

The changes have been a long time coming. On February 25, 2016, Charlie Savage reported for the Times that the Obama administration would soon be implementing a new system, years in the making, to provide more intelligence agencies across the federal government direct access to raw information collected by the NSA.

The effort to update the 1982 DoD manual’s procedures was an interagency process, Mahar explained.

“We went line by line, procedure by procedure,” he said, working with senior representatives of all defense intelligence components as the updated guidelines were finalized.

DoD officials included representatives from the military services, the Joint Staff and several defense and combat support agencies, including the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, the National Security Agency, and the Joint Improvised-Threat Defeat Agency.

“We worked closely with the Justice Department and the Office of the Director of National Intelligence because EO 12333 requires approval by the attorney general after consultation with the DNI,” he said, noting that the process was a good example of interagency collaboration.

“We took a very complex set of procedures and effectively updated them to deal with current and near-future operating practices and capabilities,” he said

Late last night, the NY Times broke a very troubling story. Rather than finally putting an end to Executive Order 12333, it appears that President Obama is going to expand the power of it in dangerous ways. We‘ve written about EO 12333 a bunch of times, but for those of you unfamiliar with it, it‘s an executive order signed by President Reagan that basically gave the NSA pretty free rein to collect signals intelligence outside of the US. Because it‘s not (technically) about domestic surveillance, what the NSA does under EO 12333 is not subject to Congressional oversight. That is, Congress is mostly as much in the dark as everyone else is on what the NSA is doing overseas. And, as former State Department official John Napier Tye revealed a couple of years ago, for all the talk of domestic surveillance programs revealed by Ed Snowden, the NSA‘s real power comes almost entirely from 12333.

…

The bill is essentially guaranteed to receive Obama‘s signature—something privacy advocates have been pushing to prevent. That‘s because one of the provisions in the bill enshrines Executive Order 12333, a Reagan-era surveillance directive, into law.

Executive Order 12333, issued by Reagan on Dec. 4, 1981, is one of the most controversial presidential directives ever issued. If Americans know its name at all, it is only because 12333 is at the heart of the sweeping surveillance apparatus established by the National Security Agency (NSA).

(30. Oktober) Today, we‘re releasing a new set of documents concerning Executive Order 12333 that we — alongside the Media Freedom and Information Access Clinic at Yale Law School — obtained in an ongoing Freedom of Information Act lawsuit. EO 12333 hasn‘t received much public attention to date, but the government‘s prior disclosures in our suit have shown that the executive order in fact governs most of the NSA‘s surveillance. In the NSA‘s own words, EO 12333 is „the primary source of the NSA‘s foreign intelligence-gathering authority.“

Surveillance conducted under EO 12333 is implemented almost entirely by the executive branch, without review by Congress or the courts. EO 12333 lacks even the plainly inadequate legislative and judicial checks on the two more well-known surveillance authorities — Section 215 of the Patriot Act and the FISA Amendments Act.

Dass das Dekret 12333 bisher vernachlässigt wurde, vernachlässigt auch einen entscheidenden Umstand: Dass ein Löwenanteil der Überwachungsaktivitäten von einem Gesetz mit geheim gehaltener Auslegung autorisiert wird. Es legt für die gesamte In- und Auslandsaufklärung fest, dass durch eine Verfügung des Präsidenten andere Genehmigungen überflüssig werden. Richterliche Kontrolle fehlt vollständig.

Issued in 1981, updated in 1991 (to consolidate power, basically) and continuously expanded (mostly unofficially) since 2001, Executive Order 12333 (EO 12333) is what grants surveillance powers to our nation‘s intelligence agencies.

Foreshadowing the severe twisting of the English language that follows (see also: NSA-to-English dictionary), the opening paragraphs note that what certain wording sounds like isn‘t actually what it means.

Often referred to as “twelve triple three” or EO 12333, the executive order came into being in 1981 under Reagan.

Today, we‘re releasing several key documents about Executive Order 12333 that we obtained from the government in response to a Freedom of Information Act lawsuit that the ACLU filed (along with the Media Freedom and Information Access Clinic at Yale Law School) just before the first revelations of Edward Snowden.

There‘s a key difference between EO 12333 and the two main legal authorities that have been the focus of the public debate — Section 215 of the Patriot Act and the FISA Amendments Act, which the government relies on to justify the bulk collection of Americans‘ phone records and the PRISM program. Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts. That‘s why uncovering the government‘s secret interpretations of the order is so important.

EFF, joined by Access, filed public comments last week urging the Privacy and Civil Liberties Oversight Board (PCLOB) to tackle the unknown spying activities occurring under Executive Order 12333 (EO 12333). The Executive Order is supposed to protect Americans from presidentially-directed spying; however, despite the protections, EO 12333 is being used for mass spying that collects Americans‘ communications, address books, and other information.

The letter urges the PCLOB to expand its investigation into EO 12333 and

„explore the entire scope of surveillance conducted thereunder, the entire gamut of policies overseeing such collection, and what reforms could be implemented to narrow this authority.“

(21. Juli 2014) Mit den Enthüllungen von Edward Snowden ist bekanntgeworden, dass diese Verfügung beispielsweise das Abhören kompletter Länder autorisiert. (…)
In der 12. von 46 Empfehlungen fordert die Kommission, dass ein solcher Datenbeifang im Ausland ohne das Vorliegen zwingender Gründe gelöscht werden sollte. Dabei sprechen die Experten von der Sektion 702 des Fisa-Gesetzes und „jeder anderen Befugnis“, womit sie laut Napier Tye die Präsidentenverfügung gemeint hatten, ohne diese direkt genannt zu haben.

(29. August) We, the undersigned former government officials, organizations, and members of Congress, write to express our concerns about the U.S. government’s surveillance activities conducted under the authority of Executive Order 12333.

The 1 For the purposes of this directive, the terms „Intelligence Community“ and „elements of the Intelligence Community“ shall have the same meaning as they do in Executive Order 12333 of December 4, 1981, as amended (Executive Order 12333). (..)

2 For the purposes of this directive, the terms „foreign intelligence“ and „counterintelligence“ shall have the same meaning as they have in Executive Order 12333. Thus, „foreign intelligence“ means „information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists,“ and „counterintelligence“ means „information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities.“ Executive Order 12333 further notes that „[i]ntelligence includes foreign intelligence and counterintelligence.“ (..)

7 Departments and agencies shall apply the term „personal information“ in a manner that is consistent for U.S. persons and non-U.S. persons. Accordingly, for the purposes of this directive, the term „personal information“ shall cover the same types of information covered by „information concerning U.S. persons“ under section 2.3 of Executive Order 12333.

Obama avoided almost entirely any discussion of overseas intelligence collection that he authorized on his own, under Executive Order 12333, without legislative or judicial supervision.

(30.12.2012) The latest lawsuit seeks information related to the use of Executive Order 12333, which was signed in 1981 and governs surveillance of foreign targets.

Under the order, the National Security Administration is collecting „vast quantities“ of data globally under the order‘s authority, „inevitably“ including communications of U.S. citizens, the lawsuit said.

This is quite important for a variety of reasons, including that nearly every rationale given by the NSA and its defenders for surveillance programs under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act simply doesn‘t apply to surveillance done under EO 12333. Claims such as that the surveillance has oversight from all three branches of government? That‘s not true at all — not even in the fake-oversight way that there‘s „official“ oversight of the US-focused programs. Claims that the courts have tested these programs? Again, not so. The FISA Court has no authority over the programs that are technically under EO 12333. Basically, it‘s fair game — and since it‘s now obvious that these programs are collecting data on Americans, the ACLU is making the fairly strong argument that there needs to be some legal analysis — and, as a starting point, the government should reveal its own basis for these programs.

(b) National Security Agency, whose responsibilities shall include:
(1) Establishment and operation of an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities except pursuant to a delegation by the Secretary of Defense;
(2) Control of signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders;
(3) Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
(4) Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
(5) Dissemination of signals intelligence information for national foreign intelligence purposes to authorized elements of the Government, including the military services, in accordance with guidance from the Director of Central Intelligence;
(6) Collection, processing and dissemination of signals intelligence information for counterintelligence purposes;
(7) Provision of signals intelligence support for the conduct of military operations in accordance with tasking, priorities, and standards of timeliness assigned by the Secretary of Defense. If provision of such support requires use of national collection systems, these systems will be tasked within existing guidance from the Director of Central Intelligence;
(8) Executing the responsibilities of the Secretary of Defense as executive agent for the communications security of the United States Government;
(9) Conduct of research and development to meet the needs of the United States for signals intelligence and communications security;
(10) Protection of the security of its installations, activities, property, information, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the NSA as are necessary;
(11) Prescribing, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the NSA, and exercising the necessary supervisory control to ensure compliance with the regulations;
(12) Conduct of foreign cryptologic liaison relationships, with liaison for intelligence purposes conducted in accordance with policies formulated by the Director of Central Intelligence; and
(13) Conduct of 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. (…)

1.14The Federal Bureau of Investigation. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the FBI shall:
(a) Within the United States conduct counterintelligence and coordinate counterintelligence activities of other agencies within the Intelligence Community. When a counterintelligence activity of the FBI involves military or civilian personnel of the Department of Defense, the FBI shall coordinate with the Department of Defense;
(b) Conduct counterintelligence activities outside the United States in coordination with the CIA as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;
(c) Conduct within the United States, when requested by officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support foreign intelligence collection requirements of other agencies within the Intelligence Community, or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government;
(d) Produce and disseminate foreign intelligence and counterintelligence; and
(e) Carry out or contract for research, development and procurement of technical systems and devices relating to the functions authorized above.

NSA‘s electronic surveillance authority is found in Executive Order 12333, entitled „Intelligence Activities.“ Executive Order 12333 authorizes NSA to collect, process, and disseminate signals intelligence information for national foreign intelligence (and counterintelligence) purposes and in support of U.S. military operations.