Wednesday, March 8, 2017

Executive Order 12333 - The Root of Today's Surveillance State

With the most recent revelations from WikiLeaks showing us how dead the concept of privacy is in the post-9/11 world, I wanted to take a look back in time to look at the roots of the modern American surveillance state.

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.

Here is the opening paragraph:

"Timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available.” (my bold)

The goals of the national intelligence effort were/are as follows:

The United States intelligence effort shall provide the President and the National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats. All departments and agencies shall cooperate fully to fulfill this goal.

(a) Maximum emphasis should be given to fostering analytical competition among appropriate elements of the Intelligence Community.

(b) All means, consistent with applicable United States law and this Order, and with full consideration of the rights of United States persons, shall be used to develop intelligence information for the President and the National Security Council. A balanced approach between technical collection efforts and other means should be maintained and encouraged.

(c) Special emphasis should be given to detecting and countering espionage and other threats and activities directed by foreign intelligence services against the United States Government, or United States corporations, establishments, or persons.

(d) To the greatest extent possible consistent with applicable United States law and this Order, and with full consideration of the rights of United States persons, all agencies and departments should seek to ensure full and free exchange of information in order to derive maximum benefit from the United States intelligence effort.

The departments included in this Executive Order were the National Security Council (which is actually part of the Executive Office of the President), the Central Intelligence Agency, the Department of State, the Department of the Treasury, the Department of Defense including the Defense Intelligence Agency and the National Security Agency and the Department of Energy.  Each government department had its own mandate; for instance, the CIA was to collect, produce and disseminate foreign intelligence and counterintelligence, including material that was not otherwise available.  The Department of State was to overtly collect information relevant to United States foreign policy concerns and the Department of the Treasury was to overtly collection foreign financial and monetary information among other duties.

When it came to collection techniques, here is what Executive Order 12333 had to say:

"Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize:

(a) The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance;

(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:

(1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and

(2) Searches by CIA of personal property of non-United States persons lawfully in its possession.

(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:

(1) Physical surveillance of present or former employees, present or former intelligence agency contractors or their present of former employees, or applicants for any such employment or contracting; and

(2) Physical surveillance of a military person employed by a non-intelligence element of a military service.

(d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.” (my bold)

Under Executive Order 12333, the NSA and British partner, the Government Communications Headquarters or GCHQ, taps telephone and internet backbones throughout the world (i.e. the cables through which communications traffic passes), recording the personal telephone calls of entire nations as well as internet traffic on Google and Yahoo data centres located overseas and the content of emails as well as the surfing profiles of all internet users.  Keep in mind that, under 12333, all data for all persons is "vacuumed up", whether they are suspected in any shenanigans or not.  

Executive Order 12333 has been amended three times; by EO 13284 on January 23, 2003 and EO 13555 on August 27, 2004.  Under EO 13555, the Director of National Intelligence became the head of the American intelligence community, rather than the Central Intelligence Agency.  As if two amendments weren't enough, George W. Bush signed a third amendment, Executive Order 13470 which further strengthened the role of the Director of National Intelligence.  One paragraph in EO 13470 caught my attention:

"The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law."

How's that working out for those of us that have televisions that are watching us instead of the other way around, thanks to the Central Intelligence Agency?  In case you didn't catch that one, here's the document from WikiLeaks for your entertainment:

As you can see from this posting, our current privacy-free world can trace its origins back to Ronald Reagan's Executive Order 12333.  I can't imagine that, back in 1981, the intelligence community anticipated the technology that would be required to surveil all of us in this interconnected global village but, from the recent Wikileaks revelations, it would appear that the American surveillance state has adapted quite well.

...and this is what life is like in a benevolent dictatorship....

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