No Oversight, No Limits, No Worries: A Primer on Presidential Spying and Executive Order 12,333

89 Pages Posted: 26 Nov 2019 Last revised: 12 Oct 2020

See all articles by Mark M. Jaycox

Mark M. Jaycox

University of California, Berkeley, School of Law

Date Written: November 14, 2019

Abstract

Executive Order 12,333 ("EO 12333") is a 1980s Executive Order signed by President Ronald Reagan that, among other things, establishes an overarching policy framework for the Executive Branch's spying powers. Although electronic surveillance programs authorized by EO 12333 generally target foreign intelligence from foreign targets, its permissive targeting standards allow for the substantial collection of Americans' communications containing little to no foreign intelligence value. This fact alone necessitates closer inspection.

This working draft conducts such an inspection by collecting and coalescing the various declassifications, disclosures, legislative investigations, and news reports concerning EO 12333 electronic surveillance programs in order to provide a better understanding of how the Executive Branch implements the order and the electronic surveillance programs it authorizes. The Article pays particular attention to EO 12333's designation of the National Security Agency as primarily responsible for conducting signals intelligence, which includes the installation of malware, the analysis of internet traffic traversing the telecommunications backbone, the hacking of U.S.-based companies like Yahoo and Google, and the analysis of Americans’ communications, contact lists, text messages, geolocation data, and other information.

After exploring the electronic surveillance programs authorized by EO 12333, this Article proposes reforms to the existing policy framework, including narrowing the aperture of authorized surveillance, increasing privacy standards for the retention of data, and requiring greater transparency and accountability.

Keywords: Executive Order 12333, electronic surveillance, signals intelligence, foreign intelligence, National Security Agency, Edward Snowden, Section 215 of the USA Patriot Act, Section 702 of the Foreign Intelligence Surveillance Act

Suggested Citation

Jaycox, Mark M., No Oversight, No Limits, No Worries: A Primer on Presidential Spying and Executive Order 12,333 (November 14, 2019). Available at SSRN: https://ssrn.com/abstract=3486701 or http://dx.doi.org/10.2139/ssrn.3486701

Mark M. Jaycox (Contact Author)

University of California, Berkeley, School of Law ( email )

Berkeley, CA
United States

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