A new analysis of the Edward Snowden leaks has revealed that the National Security Administration circumvents laws meant to protect Americans from government spying – and that doing it is somehow still legal. What’s more, the NSA has been lying about it for some time.
US citizens are afforded constitutional protections against surveillance or searches of their personal data. Any time the government wants to access an American's data, they must follow the rules of the Foreign Intelligence Surveillance (FISA) Court, a Washington DC-based court that authorizes the government's surveillance programs.
If the NSA collects that same data outside the U.S., however, then the domestic protections do not apply. The NSA realized this early on, and simply bypassed the protections by re-routing the traffic to outside the U.S., picking up the data on its way back into the country.
GCHQ -- Britain's version of the NSA.
Many might call foul on this tactic – it’s dirty, it’s sinister, and it’s highly unconstitutional. Others might skip right to the term “illegal.” Interestingly enough, however, it’s not illegal at all. In fact, it’s been quite legal for many years – approved of by an iconic Republican president.
President Ronald Reagan signed Executive Order 12333 in 1981, less than a year after taking office. Twelve Triple Three, as it’s called, allows for the collection of quite literally anything the government wants – and has for decades. John Whitehead of the Rutherford Institute breaks it down:
By shifting its data storage, collection and surveillance activities outside of the country—a tactic referred to as “traffic shaping” —the government is able to bypass constitutional protections against unwarranted searches of Americans’ emails, documents, social networking data, and other cloud-stored data.
The obvious questions in light of this information are simple: Why all the hubbub over Section 215 of the Patriot Act? Why the debate over the USA Freedom Act? Unfortunately, the answers are equally as simple – all of this legislation is simply a dog and pony show. It’s all meant to distract the average American from the knowledge that no matter what laws are debated or passed, no matter what the government says it’s trying to do to ‘protect’ the privacy of Americans, EO 12333 gives them carte blanche to collect every scrap of content you create. As Whitehead bluntly states:
The USA Freedom Act was just a placebo pill intended to make the citizenry feel better and let the politicians take credit for reforming mass surveillance. In other words, it was a sham, a sleight-of-hand political gag pulled on a gullible public desperate to believe that we still live in a constitutional republic…
In case you find Whitehead’s comments to be a bit too dramatic, note that a full year before the USA Freedom Act, security researchers found and published secret loopholes that allowed for traffic shaping, pointing out that the NSA could use those loopholes to bypass any and all constitutional protections of American citizens. The NSA pretended to deny the accusations:
Absent limited exception (for example, in an emergency), the Foreign Intelligence Surveillance Act requires that we get a court order to target any U.S. person anywhere in the world for electronic surveillance. In order to get such an order, we have to establish, to the satisfaction of a federal judge, probable cause to believe that the U.S. person is an agent of a foreign power…
If you take a closer look at the NSA statement, however, you’ll see something deeper. The phrase “absent limited exception” simply means that there are exceptions, which means there are occasions where they do not get a warrant from the FISA court. They go on to use “in an emergency” as an example – but “an example” is merely that. It’s not the only time the NSA takes advantage of the “exception.” In fact, with those two pieces of knowledge in mind, and understanding what EO 12333 allows, the NSA could engage in total, complete digital surveillance of every American citizen – and their statement would still be factually true. As today’s revelation indicates, total surveillance is exactly what happened – and the proof is there for anyone who cares to look.
As far back as 2007, a top secret document leaked out, showing exactly how to perform the type of traffic shaping that the NSA claimed it wasn’t doing. How did they get away with it? Executive Order 12333.
As whistleblower Bill Binney explains, EO 12333 is a “blank check.” Binney would know; he helped design the foreign intelligence collection programs that the government turned against the American people, and he resigned in protest one month after the 9/11 attacks.
Under Twelve Triple Three, any and all communications collected outside the United States are fair game, and not just metadata, all content as well. That level of collection means that it’s not just a list of your emails or phone calls, it’s also copies of the emails themselves and recordings of your calls. The key phrase is “incidental” collection. They cannot target U.S. persons, but if your information just happens to get collected with everything else, EO 12333 says the government can keep it. How does the NSA ensure that Americans’ data gets “incidentally collected?” They re-route the traffic outside the country and grab it as it comes back in, effectively intercepting everything you do. The worst part about EO 12333 is that there is no oversight; as an executive order, it is not subject to any of the methods for getting rid of a bad law, and so it continues to stand, decade after decade.
Now let’s add in the peripheral knowledge that Amazon, Google, and Microsoft also collect data (and then sell it or give it away), other stores track you through loyalty cards and debit card purchases, and highway cameras or license plate readers track everywhere you go. The overarching result is more than just a surveillance state. It’s more than just a violation of privacy. It’s an electronic concentration camp, in which freedom is an illusion, ready to be shattered the minute that the watchers decide they don’t like what you’re doing.
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