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Executive Order 12333

Background

EPIC has a long-standing interest in public oversight of government surveillance, including activities conducted under Executive Order 12333. As Professor Francesca Bignami has explained, "[t]he NSA's original mandate was considerably elaborated and extended in Executive Order 12,333, promulgated by President Reagan in 1981." EPIC has tracked the government's reliance on EO 12333, particularly the reliance on Section 1:12(b)(13), which authorizes the NSA to provide "such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement." This provision appears to have opened the door for the NSA's broad and unwarranted surveillance of U.S. and foreign citizens.

Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981. It established broad new surveillance authorities for the intelligence community, outside the scope of public law. EO 12333 has been amended three times. It was amended by EO 13284 on January 23, 2003 and was then amended by EO 13555 on August 27, 2004. EO 13555 was subtitled "Strengthened Management of the Intelligence Community" and reflected the fact that the Director of National Intelligence (DNI) now existed as the head of the intelligence community, rather than the CIA which had previously served as the titular head of the IC. EO 13555 partially supplemented and superseded EO 12333. On July 30, 2008, President George W. Bush signed EO 13470, which further supplemented and superseded EO 12333 to strengthen the role of the Director of National Intelligence.

Since the Snowden revaluations there has been a great deal of discussion regarding the activities of the IC community, but relatively little attention has been paid to EO 12333. EO 12333 often serves an alternate basis of authority for surveillance activities, above and beyond Section 215 and 702. As Bruce Schneier has emphasized, "Be careful when someone from the intelligence community uses the caveat "not under this program," or "not under this authority"; almost certainly it means that whatever it is they're denying is done under some other program or authority. So when[NSA General Counsel Raj] De said that companies knew about NSA collection under Section 702, it doesn't mean they knew about the other collection programs." Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, has said in August 2013 that, "The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee's focus on those activities." In July 2014, a former Obama State Department official, John Napier Tye, wrote an Op-Ed in the Washington Post calling for greater scrutiny of EO 12333. Tye noted that "based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215."

Top News

  • Surveillance Court Finds FBI Repeatedly Misused FISA Program to Conduct Unlawful Surveillance of Americans: The Foreign Intelligence Surveillance Court (FISC) recently disclosed an opinion revealing that the FBI has repeatedly misused Section 702 of Foreign Intelligence Surveillance Act (FISA) to gather information in domestic investigations. Section 702 (sometimes referred to as the "PRISM" program) authorizes certain programs of surveillance of private communications for foreign intelligence purposes, without prior court approval, where the surveillance targets non-US persons located abroad. The law has been widely criticized, in part, because of the "backdoor search" loophole that allows domestic law enforcement officials to access Americans' communications without a warrant. The surveillance court previously found that the FBI's procedures for obtaining information through backdoor searches violated the Fourth Amendment. The newly published opinion demonstrates how the FBI has failed to reform these unlawful practices. An audit revealed that the agency searched FISA information 40 times last year while investigating a wide range of purely domestic crimes, including health-care fraud, gang violence, domestic terrorism by "racially motivated violent extremists," and public corruption. Again, the FISC expressed "concern[] about the [FBI's] apparent widespread [Section 702] violations." EPIC has long tracked FISA court orders and advocated for FISA reform. More recently, EPIC filed a Freedom of Information Act lawsuit seeking disclosure of a report concerning FBI use of Section 702 authority for domestic criminal investigations and participated as amicus to address the scope of U.S. surveillance authorities in the Court of Justice of the European Union. (Apr. 29, 2021)
  • Senate Amends FISA Reauthorization Bill, Sends Back to the House: The Senate voted today to pass an amended version of the USA FREEDOM Reauthorization Act of 2020, which was passed by the House in March. The bill would end the NSA’s bulk telephone metadata program and make further reforms to the Foreign Intelligence Surveillance Act. The Senate agreed this week to further amendments by Senators Lee and Leahy that expand FISA protections, but rejected amendments proposed by Senators Wyden and Daines that would have protected Americans’ internet browsing and search histories. The adopted Leahy/Lee amendment strengthens the role of “amici curiae,” who are independent, expert advisors to the Foreign Intelligence Surveillance Court, by increasing their access to information, their power to raise issues with the Court, and the number of cases they are appointed in. Since amendments were adopted, the bill now returns to the House of Representatives for consideration. Members of both parties have expressed support for reform of the controversial NSA surveillance program. EPIC closely tracks the use of FISA authority. EPIC has advocated for significant FISA reforms, and recently advised Congress to limit Section 702 surveillance and to allow Section 215 to expire. (May. 15, 2020)
  • U.S. Courts Release 2018 FISA Report: The Administrative Office of the U.S. Courts has issued the 2018 report on activities of the Foreign Intelligence Surveillance Court. The 2018 report reveals a significant decline in the number of total applications to the FISC. There were 1,318 FISA applications in 2018, down by three hundred applications from the total of 1,614 in 2017. The scrutiny of FISA applications by the Court remained steady after an uptick last year: 985 orders were granted, 261 orders were modified, 42 orders were denied in part, and 30 applications were denied in full. EPIC testified before Congress in 2012 on the need to improve review of FISA applications. EPIC Senior Counsel Alan Butler also recently appeared before Europe's highest court to provide expert analysis on U.S. surveillance law, including FISA authorities. (Jul. 11, 2019)
  • U.S. Courts Release 2017 FISA Report: The Administrative Office of the U.S. Courts has issued the 2017 report on activities of the Foreign Intelligence Surveillance Court. Scrutiny of FISA applications increased substantially in 2017. The 2017 FISA report reveals that there were 1,614 FISA applications in 2017, of which 1,147 were granted, 391 were modified, 50 were denied in part, and 26 were denied in full. As compared to 2016, the FISA court denied nearly two times as many applications in part, and denied nearly three times as many applications in full. EPIC testified before Congress in 2012 on the need to improve review of FISA applications. In recent comments on US surveillance authority, EPIC noted the reauthorization of 702 spying authorities without sufficient safeguards. (Apr. 25, 2018)
  • EPIC Sues Justice Department for Release of Report on 'Backdoor Searches': EPIC has filed a Freedom of Information Act lawsuit against the Department of Justice National Security Division for a report detailing the FBI's warrantless searches for information about U.S. citizens. Section 702 of the Foreign Intelligence Surveillance Act allows conduct warrantless searches of non-U.S. persons in foreign intelligence investigations. But there are concerns that the FBI uses this authority to conduct "backdoor searches" on Americans. In EPIC v. NSD, EPIC seeks the release of a report ordered by the Foreign Intelligence Surveillance Court detailing the FBI's use of section 702 data for domestic criminal purposes. EPIC also recently joined coalition of over 50 organizations calling on lawmakers to establish a warrant requirement before the government can search 702 databases for information about U.S. citizens and residents. The USA Rights Act, now pending in Congress, would end backdoor searches by all federal agencies. (Nov. 1, 2017)
  • Senators Introduce USA Rights Act, Back Significant Reforms to FISA Spying: Eleven senators introduced bipartisan legislation to reauthorize the Foreign Intelligence Surveillance Act with significant new civil liberties protections. Among other reforms, the USA Rights Act codifies the ban on collecting "about" communications, prohibits collection of domestic communications, expands the powers of the Civil Liberties Oversight Board, and requires independent amicus review during the FISC's annual authorization. The bill does not establish certain protections sought by Europeans during the recent Privacy Shield review. Senate Intelligence Committee Chair Richard Burr bill would expand 702 surveillance authorities. EPIC and a coalition of organizations recently urged the markup hearing on the proposal be opened to the public. (Oct. 24, 2017)
  • EPIC, Coalition Call for End to Warrantless Section 702 Searches of Americans' Data: EPIC and a coalition of over 50 organizations called on lawmakers to require federal agencies to obtain a probable cause warrant before searching foreign intelligence databases for information about U.S. citizens and residents. Section 702 of the Foreign Intelligence Surveillance Act allows agencies - without a warrant and in a broad range of circumstances - to search for information about Americans among communications collected for foreign intelligence purposes. In a letter to leaders of the House Judiciary Committee, the groups explained that this practice "undermine[s] constitutional protections create an unacceptable loophole to access Americans' communications in criminal and foreign intelligence investigations alike." EPIC and a coalition also recently urged Director of National Intelligence Dan Coates to uphold a promise to give a public estimate of how many Americans are caught up in NSA surveillance of foreign targets. EPIC is currently pursuing a Freedom of Information Act request for a government report to the Foreign Intelligence Surveillance Court about FBI search of Section 702 data for domestic criminal investigations. (Oct. 3, 2017)
  • EPIC Seeks Release of FISA Order for Trump Tower: EPIC has filed an urgent FOIA request with the Department of Justice for the release of the warrant for wiretapping the Trump Tower in New York city. The President has charged that President Obama "had [his] wires tapped in Trump Tower." EPIC has filed a formal Freedom of Information request of the public release of any applications filed under "FISA" for wiretapping in Trump Tower. Such an order would have been filed by the National Security Division of the Justice Department and approved by the Foreign Intelligence Surveillance Court. The complete text of the Foreign Intelligence Surveillance Act is available in the Privacy Law Sourcebook (EPIC 2016) at the EPIC Bookstore. (Mar. 6, 2017)
  • Senator Leahy Calls for FISA Reforms: The Senate Judiciary Committee held a hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “PRISM” program. EPIC testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since called for the end of the section 702. This week Senator Patrick Leahy (D-VT) stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry." (May. 13, 2016)
  • Intelligence Court Skeptical of Some FISA Applications: The Department of Justice has published the 2015 FISA report, which summarizes the use of the Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the FISA Court (FISC). Overall, the Government’s applications for FISA warrants has declined since 2003  but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders. (May. 3, 2016)

Structure of EO 12333

EO 12333 is divided into three parts (this describes the current EO 12333 as amended). The first part is the bulk of the order, describing the overall goals, directions, duties, and responsibilities of U.S. intelligence efforts. The second part applies to the actual conduct of intelligence activities and includes a prohibition on assassination. The third part consists of general provisions and includes general definitions, implementation, and the requirement of compliance with congressional oversight.

Part 1: Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts

  • 1:1 Goals
  • 1.2 The National Security Council
  • 1.3 Director of National Intelligence
  • 1.4 The Intelligence Community
  • 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies
  • 1.6 Heads of Elements of the Intelligence Community
  • 1.7 Intelligence Community Elements
    • a) The Central Intelligence Agency
    • b) The Defense Intelligence Agency
    • c) The National Security Agency
    • d) National Reconnaissance Office
    • e) The National Geospatial-Intelligence Agency
    • f) The Intelligence and Counterintelligence Elements of the Army, Navy, Air Force, and Marine Corps
    • g) Intelligence Elements of the Federal Bureau of Investigation
    • h) The Intelligence and Counterintelligence Elements of the Coast Guard
    • i) The Bureau of Intelligence and Research, Department of State; The Office of Intelligence and Analysis, Department of the Treasury; The Office of National Security Intelligence, Drug Enforcement Administration; The Office of Intelligence and Analysis, Department of Homeland Security; and the Office of Intelligence and Counterintelligence, Department of Energy.
    • j) The Office of the Director of National Intelligence.
  • 1.8 Department of State
  • 1.9 The Department of the Treasury
  • 1.10 The Department of Defense
  • 1.11 The Department of Homeland Security
  • 1.12 The Department of Energy
  • 1.13 The Federal Bureau of Investigation

Part 2: Conduct of Intelligence Activities

  • 2.1 Need
  • 2.2. Purpose
  • 2.3 Collection of Information
  • 2.4 Collection Techniques
  • 2.5 Attorney General Approval
  • 2.6 Assistance to Law Enforcement and Other Civil Authorities
  • 2.7 Contracting
  • 2.8 Consistency With Other Laws
  • 2.9 Undisclosed Participation in Organizations Within the United States
  • 2.10 Human Experimentation
  • 2.11 Prohibition on Assassination
  • 2.12 Indirect Participation
  • 2.13 Limitation on Covert Action

Part 3: General Provisions

  • 3.1 Congressional Oversight
  • 3.2 Implementation
  • 3.3 Procedures
  • 3.4 References and Transition
  • 3.5 Definitions
  • 3.6 Revocation
  • 3.7 General Provisions

EPIC's Interest

In 2012, EPIC sought and obtained from the Office of the Director of National Intelligence the guidelines for the National Counterterrorism Center (NCTC). The NCTC is a part of the intelligence community, which operates under the authority of EO 12333. EPIC has stressed through its comments, statements, and testimony that U.S. intelligence agencies should not exercise broad authority without oversight. Executive Order 12333 is such a case, an order that has never been subject to meaningful oversight by either courts or Congress. Senator Dianne Feinstein, the Chair of the Senate Intelligence Committee, referring to EO 12333, has said, "I don't think privacy protections are built into it. It's an executive policy. The executive controls intelligence in the country."

Ronald Reagan executed the order in 1981. Executive Order 12333 authorizes the collection of not only metadata, but of the actual communications of US citizens, so long as the communications are collected "incidentally." These communications can then be held for five years, as described by a document that the Director of National Intelligence recently declassified. The NSA has used Executive Order 12333 to justify, among other things, the interception of unencrypted data between Google and Yahoo data centers. None of the currently proposed reforms address the over-broad surveillance authorities established by Executive Order 12333. EPIC has long urged PCLOB to move beyond their Section 215 and Section 702 investigations and examine the scope of information under EO 12333 and the need for greater public oversight. As EPIC Advisory Board member Steven Aftergood has noted, "If they deviated from their own rules, how would it be discovered? I am not satisfied that they have an answer to that question."

Resources

EPIC's FOIA Requests

In mid-2014, EPIC requested from multiple government agencies "records related to the government's surveillance and collection of electronic communications outside the United States under EO 12333, and other related EOs, including the collection and interception of messages, metadata, and other transactional and business records regarding e-mail, telephone, and Internet usage."

The Office of the Director of National Intelligence also announced on February 3, 2015, that pursuant to Presidential Policy Directive 28 the members of the Intelligence Community have revised their policies and adopted new rules regarding the retention and minimization of signals intelligence. Those policies are linked below:

Documents Obtained

  • Privacy and Civil Liberties Oversight Board

    • Executive Orders

    Governmental Resources

    Other Resources

    News Reports

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