On January 12th, 2016, the Obama administration approved new rules which allow the NSA to share raw signals intelligence collected under Executive Order 12333 with other intelligence agencies and law enforcement agencies such as the DEA, FBI, DHS, IRS, and even local and state police.

Executive Order 12333

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Executive Order 12333 was first signed by President Ronald Reagan on December 4th, 1981. It created new authorities for US intelligence agencies. The order was amended three times during President George W. Bush’s two terms in office, in 2003, 2004, and 2008. Under this Executive Order the NSA is authorized to collect virtually all electronic communications from both people who are within the United States, as well as people who are outside of the country, without a warrant, court order, probable cause, or reasonable suspicion.

Specifically, Executive Order 12333 authorizes the NSA to “Conduct 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.” The order also allows the collection and sharing of “Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws.” Unlike the interception of communications authorized under CALEA, the USA PATRIOT Act/USA FREEDOM Act, and the Foreign Intelligence Surveillance Act (FISA), the mass surveillance conducted under Executive Order 12333 has no congressional authorization or oversight, and it is authorized only by the President of the United States.

Prior to this latest amendment to E.O. 12333, the NSA would filter the intelligence they collected and would only share what they deemed pertinent to other intelligence agencies and to law enforcement. Now other agencies will be allowed to search the raw, unfiltered communications intercepted by the NSA. The new changes to the order have been in the works for years, starting with the Bush administration’s final amendment to the order in 2008, and since then the Obama administration had been working to develop a framework for how to implement the expanded sharing of NSA intercepts since the President took office in 2009.

NSA Intercepts Used For Criminal Prosecutions

While law enforcement has been conducting their own secretive mass surveillance programs using technology like cell site simulators, and the DEA and Department of Justice has had their own phone records database for decades, the NSA’s database is much larger and contains classified information. When the NSA shares it’s intelligence with the DEA, it does so through the DEA’s Special Operations Division. The Special Operations Division may then funnel tips to state and local law enforcement agencies. The NSA’s sharing of information with law enforcement agencies is often covered up through a process known as “parallel construction”. A former federal agent told Reuters that, “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it.” After an arrest is made, the fact that the investigation began with a tip from the NSA and the DEA’s Special Operations Division would then be covered up. Finn Selander, a former DEA agent who now advocates for the legalization of drugs, told Reuters, “It’s just like laundering money – you work it backwards to make it clean.”

Generally, evidence obtained illegally is inadmissible in court, under the “fruit of the poisonous tree” doctrine. Former NSA Technical Director and whistleblower William Binney has called the NSA’s sharing of intelligence with law enforcement, “the most threatening situation to our constitutional republic since the Civil War.” Explaining the use of parallel construction, Binney said, “You use that data to substitute for the NSA data that was originally used to arrest them. And you substitute the parallel constructed data in the courtroom, which I’ve called perjury. They’re lying to the courts and they’re subverting our entire judicial process.” Internal training documents for the DEA and the IRS obtained by Reuters show instructions for agents to use the parallel construction process. Many defense attorneys are upset and concerned about the use of parallel construction, and even some prosecutors are opposed to the use of parallel construction. A prosecutor in a federal drug case in Florida refused to press charges, after it was discovered that information in the case was obtained through a tip from the NSA. It has been widely speculated that the NSA supplied law enforcement with information in the Silk Road case, something the FBI refuses to comment on. With the new amendments to Executive Order 12333, it is likely that the use of parallel construction will increase.

Privacy Advocates Condemn Expanded Access to NSA Intercepts

Many privacy advocates are opposed to allowing law enforcement to have access to the NSA’s raw surveillance. Neema Singh Guliani, legislative counsel with the ACLU, commented on the Obama administration’s expanded access to communications intercepted by the NSA in a statement, saying, “The procedures released today allow more agencies to directly access information collected by the NSA without a warrant under procedures that are grossly inadequate. This raises serious concerns that agencies that have responsibilities such as prosecuting domestic crimes, regulating our financial policy, and enforcing our immigration laws will now have access to a wealth of personal information that could be misused. Congress needs to take action to regulate and provide oversight over these activities.”

Nathan White, the legislative manager for Access Now, told The Intercept that, “One of the fundamental tenets of privacy among the intelligence community has been that when the collection is large on the front end, you need tighter minimization procedures on the back end.”

Alex Marthews, who is the National Chair for Restore the Fourth, a privacy rights organization which formed in the aftermath of the Snowden revelations, released a statement by e-mail saying, “Sometimes, silos are good. The previous limitations on NSA data sharing to other US government intelligence agencies existed for a reason. NSA was set up to collect intelligence on agents of foreign powers and the activities of hostile foreign governments, not to suppress domestic dissent and enforce domestic anti-drug laws. Integrating these data sets will increase prosecutions against Americans that use NSA-derived data, without giving them a realistic chance to challenge that evidence in court. No President’s Justice Department should have such easily accessed ammunition against the President’s enemies.” Restore the Fourth is among several organizations, such as Off Now and the Tenth Amendment Center, that are currently working to get legislation passed at the local and state level to push back against the federal government’s mass surveillance programs.