It’s been widely reported that the NSA, under the constitutionally suspect authority of Section 215 of the PATRIOT Act, collects all Americans’ phone metadata. Congress has not yet passed any reforms to this law, but there have been many proposals for changes and the national debate is still raging. Yet Americans’ data is also being collected under a different program that’s entirely hidden from public oversight, and that was authorized under the Reagan-era Executive Order 12333.
That’s the topic of a TEDx-Charlottesville talk by whistleblower John Napier Tye, entitled “Why I spoke out against the NSA.” Tye objected to NSA surveillance while working in the US State Department. He explains that EO 12333 governs data collected overseas, as opposed to domestic surveillance which is authorized by statute. However, because Americans’ emails and other communications are stored in servers all over the globe, the distinction between domestic and international surveillance is much less salient than when the order was originally given by President Reagan in 1981.
The proponents of mass surveillance tend to assume that it is in fact possible to distinguish domestic and international communications, and to apply different legal regimes to each. They also assume that it would be inherently absurd to apply Fourth Amendment protections to citizens of other countries. However, it’s not absurd to apply such protections to citizens of other countries whom the United States wishes to investigate based on probable cause of actual criminal activity. The number of such foreign nationals would hopefully, under a rational system, be small. It only becomes absurd to accord Fourth Amendment rights to foreign nationals if the intent is in fact to keep all foreign nationals, from al-Baghdadi to Yousafzai, under prospective surveillance.
The Internet isn’t set up with national borders in mind, and increasingly, phone calls and data storage in general aren’t either. But it is affected by an outdated set of laws, including ECPA and CFAA, that date to long before the era of broad Internet penetration. One way in which this plays out is in Fourth Amendment jurisprudence. The misguided 1990 Supreme Court ruling in Verdugo-Urquidez is an important piece of this puzzle. In that ruling, the majority determined that to be eligible for Fourth Amendment protection, a foreign national had to demonstrate “substantial connections” to the United States. In a passionate dissent, Justice Brennan argued,
By concluding that respondent is not one of “the people” protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them.
We believe that this dissent is worth revisiting; it’s hard to see how any other rule can function in today’s communications environment. What we have instead right now is the Verdugo-Urquidez ruling being used to justify the mass collection of all communications that cannot be proved to be fully domestic – including all communications over anonymous services like Tor, and a “full take” of all communications in several countries – in the full knowledge that vast quantities of Americans’ communications will be swept up too as they travel over the Internet’s series of (international) tubes.
The NSA has in fact consciously designed its searches to collect as much “incidental” information as possible. As Tye points out, the new NSA data center in Utah is large enough to require its own power plant, using $40 million of electricity each year to collect and sift through Americans’ data. This information is then shared with other law enforcement agencies like the IRS and DEA. Similar data centers exist throughout the country, and are supplemented by a network of 78 “fusion centers” that bring that data down to the local level. Civil liberties under this system are an afterthought, and restraint in use of tax dollars even more so.
Tye then addresses perhaps the worst part about this program: Its unaccountability. Executive orders are simply made by the president, and are not subject to Congressional approval and the same sort of transparency as bills or court cases. As with the phone metadata program, President Obama, and any president after him, has the power unilaterally to undo – or to expand further -the reach of the surveillance state. As Tye says, “Where does that leave us? Congress doesn’t know enough to change this, Americans don’t know enough to make this an election issue, no court has jurisdiction to change this, complaints inside the executive branch don’t work.” He recounts that when he was writing a speech on surveillance for the President to give, he wrote that people who didn’t like government surveillance practices could change them peacefully through the electoral system – and was told to remove that sentence because it wasn’t actually true.
We still have hope. The word has finally gotten out, and this session of Congress will see several major proposals for reform, as well as the sunset of the infamous Section 215. We’re playing our part in making sure enough Americans are aware so that we can make this an election issue. Watch the full video above, and share it with your friends; help bring us a few steps closer to ending NSA surveillance under EO 12333.