14 DAY TRIAL // Executive Order 12333, also known as “twelve triple three,” is the one document that grants the US intelligence agencies even more powers to spy on whomever they want. The order was issued in 1981, updated in 1991 and expanded since 2001.
The ACLU managed to get the government to release some new documents in response to a Freedom of Information Act lawsuit file before the first revelations of Edward Snowden even hit the media.
While it was previously known that the NSA largely rests its powers on this particular document, there’s so little known about it because it is largely top secret. Even what the ACLU managed to obtain is heavily redacted and some pages were completely kept out of the released documentation.
Forget the dictionary meanings you know
First off, it’s quite important to note that the files simply indicate that the normal understanding of some words that we all use can be completely forgotten. While they may sound the same, the meaning is completely different than what we’re used to.
“To begin the journey, it is necessary to stop first and adjust your vocabulary. The terms and words used in DoD 5240. 1-R have very specific meanings, and it is often the case that one can be led astray by relying on the generic or commonly understood definition of a particular word,” the document reads.
First of all, the word “collection” is completely different for intelligence agencies. The Dictionary of the United States Army Terms indicates that this is the gathering of information for all available sources and agencies.
For DoD 5240.1-R, however, information is collected only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties and when the employee actually takes some “affirmative action that demonstrates an intent to use or retain the information.”
Basically, holding onto some information is not “collection,” the document shows. Even if the information was gathered, packaged and sent to an agent, it’s still not considered as “collected.”
As TechDirt points out, there’s a big question regarding the aging of collected data and communications. If certain information hasn’t been “collected” within the 5-year time period, can it still be retained because the data hasn’t been used yet?
The intelligence agencies have to abide by some rules, however, although they mostly revolve around keeping the US citizens protected. A section instructs analysts that they have to err on the side of purging information related to US persons that cannot legally be retrieved, even if it was legally collected.
“The [Senate Select] Committee has reviewed the five years of experience with FISA and finds that the Act has achieved its principal objectives. Legal uncertainties that had previously inhibited legitimate electronic surveillance were resolved, and the result was enhancement of U.S. intelligence capabilities. At the same time, the Act has contributed directly to the protection of the constitutional rights and privacy interests of U.S. persons,” reads the file.
Some minimal consideration is offered to American people
Basically, even the secret layers of the permissive documents allowing the NSA to spy on the world give it the power to spy on Americans only when the data is necessary to ongoing missions.
The document later notes that the rights of US people must be protected and no intrusion into these protected areas is permissible without first meeting constitutional standards, and then only through a system of careful scrutiny of the intruding apparatus.
The document also confirms that the data on Americans that has been “incidentally” collected can be passed to other agencies if the collector has reason to believe the information points to evidence of a crime or may contain details necessary to understand foreign intelligence. This has already been revealed thanks to a series of Snowden files published last month, which indicated that the NSA hands over data to DEA, FBI, CIA and DIA.
“The system is complex, but it is not impossible. Its underlying structure is designed to balance the legitimate needs of the government with the rights of the individual. Given those constraints, one could not expect a system to exist which did not inherently contain adequate checks, balances, and oversight procedures,” reads the file further on.
Of course, this goes against other statements made by DOJ and FBI. The DOJ was complaining a while back about having to get a search warrant to look through people’s cell phone because it was making it “too difficult” to capture criminals.
Last week, the FBI chief criticized Google and Apple for having the nerve to allow users of Android and iOS phone to encrypt their data, which makes the information unusable to law enforcement even if it obtains a warrant.
Of course, that wouldn’t have happened if government agencies such as the NSA had avoided collecting data in bulk regardless if the people they were violating the privacy of were innocent or guilty.