Newly released documents prove the U.S. National Security Agency’s spying power overseas primarily comes from a 33-year-old executive order signed by then President Ronald Reagan.
The American Civil Liberties Union obtained a series of internal papers from intelligence agencies including the NSA and Defense Intelligence Agency detailing how integral Reagan’s 1981 order is to the NSA’s current surveillance program. The order broadly allows the government to collect data from any company that is believed to have ties to foreign organizations. It also complicates the path forward for intelligence reforms in Congress.
Previous reports acknowledge the order’s use as a foundation for some of the NSA’s surveillance programs such as gaining backdoor access to tech companies’ data centers. But the new documents, which were released as part of a Freedom of Information Act lawsuit the ACLU and other civil liberties advocates filed just before Edward Snowden’s leaks to the media, show Executive Order 12333 is the “primary source” authority when it comes to the NSA’s foreign spy programs.
“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,” Alex Abdo, a staff attorney for the ACLU wrote in a blog post.
Compared to section 215 of the Patriot Act, which would let intelligence agencies gather lists of incoming and outgoing calls from telecommunication companies, Reagan’s order has lax constraints on bulk data collection on U.S. citizens. As long as the communications data is stored internationally, the NSA can collect it. Federal law enforcement agencies can also get data stored overseas but first need a search warrant.
After Snowden leaked details of the government’s intricate spy program in 2013, the Obama administration ended the agency’s bulk data collection program under Section 215, and Congress is drafting a new version of the USA Freedom Act. But the proposed bill, which passed the House and awaiting a vote by the Senate, offers little protections for U.S. citizens and still gives intelligence agencies leeway to collect chunks of data. The reforms also won’t address the executive order, the ACLU pointed out.
The order is the main reason the government has been able to spy on web traffic between American companies with data centers abroad, such as Google and Yahoo. Now, those companies are feeling the heat from users in the U.S. and abroad. Foreign governments have been cracking down on American companies as a result of the surveillance revelations, as well as beefing up their own spy programs. The European Union is currently weighing whether or not companies like Facebook should be held accountable for their role in NSA spying. If Facebook loses the case, it could mean that any company that gave the NSA backdoor access would be bound to stringent privacy protections to continue operating on European soil.