Digging Deeper Into NSA Spying Uncovers Unexpected Link to Reagan Administration

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If Americans want to understand how their government justifies sweeping intelligence-gathering measures, they need to familiarize themselves with a little-known executive order from the Reagan era:

It’s being dubbed the real source of power behind the government’s dragnet surveillance—not any of the post-9/11 legislation that responded to modern terror threats, such as parts of the Patriot Act or the FISA Amendments Act that created secret courts to handle terror surveillance authorization. The order dates to 1981 and may be used as justification to conduct surveillance in the United States, according to documents released by the American Civil Liberties Union.

“The documents make it clearer than ever that the government’s vast surveillance apparatus is collecting information—including from Americans—about much more than just terrorist threats,” wrote Alex Abdo, an ACLU attorney.

Unlike activities authorized by the Patriot Act and other laws that have been part of the public debate about government spying, the programs operating under the order have virtually no oversight from Congress or the courts—not even secret courts.

“Given its scope, it deserves a lot more attention than it’s gotten,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology. One of the “irksome” things about collecting information under this order, Nojeim said, is a “willful blindness to the fact that the techniques being used are going to vacuum up a lot of Americans’ communication.”

Some of the most shocking tactics of government spying revealed by former NSA contractor Edward Snowden were authorized by this executive order, according to the ACL. Instances include NSA’s interception of Web traffic traveling through fiber-optic cables to Google’s and Yahoo’s foreign data centers and a cell-phone-location tracking program.

Given how the government relies on this order to conduct controversial surveillance programs, the ACLU argues that it deserves more public scrutiny. To what extent it can be reined in, though, is not an easy question to answer.

“It’s not a law,” Nojeim said. “The only thing that Congress can really do is pass a law that would require the executive branch to amend it.”

The Obama administration has already taken steps to curb the use of domestic surveillance, including information gathered under E.O. 12333. The presidential directive Obama issued in January prohibits the use of bulk data acquired under programs authorized by this order unless it is for the purposes of detecting and countering specific security threats such as espionage.

Nojeim finds that encouraging but urges the Obama administration to do more to stop the indiscriminate gathering of data.

One such opportunity will be at the start of 2015, when the intelligence community must provide the president with a report assessing the feasibility of creating software that would enable more targeted information acquisition rather than bulk collection.

Not only is targeting security threats a way to better avoid infringing on privacy, Nojeim notes, but it’s also a practical necessity.

“There is an ocean of data, and it’s growing,” he said. “The answer can’t always be build a bigger data center, but that’s been the answer so far.”

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