John Napier Tye, a former State Department section chief for Internet freedom, is calling on the government to answer questions related to a recent op-ed published by the Washington Post.
Tye specifically calls the NSA's surveillance operations abroad conducted under Executive Order 12333, a threat to American democracy, saying that the executive order in question "authorizes collection of the content of communications, not just metadata, even for U.S. persons." Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981 and established guidelines for intelligence community activities taken abroad, including the collection of signals intelligence for surveillance purposes.
The long-standing executive order received public attention in October 2013, when a classified slide provided to the Washington Post by former NSA contractor Edward Snowden showed how the NSA tapped the main communication links of Yahoo and Google data centers around the world. The Washington Post noted at the time that the authority granted to the NSA under Executive Order 12333 made all of these action possible.
At the time, former NSA chief analyst John Schindler said, "Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and maximize collection by exploiting every loophole. It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA [the Foreign Intelligence Surveillance Act]."
In his op-ed Tye said that the chairman of the Senate Select Committee on Intelligence did not believe that Congressional oversight of 12333 authorities was sufficient. Tye also said that the current architecture of many Internet services results in digital communications traveling or being stored beyond US borders – and that this data can then be collected by the NSA without court approval or a report to Congress.
Tye questions the constitutionality of this data collection, stating: "I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing."
Tye goes on to point out that data collection under E.O. 12333 was of deep concern to the president’s Review Group on Intelligence and Communication Technologies, which addressed the matter as part of Recommendation 12 in its report.
The op-ed concludes by asking the government to give an honest answer to the question, "what kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?"
You can read the Washington Post op-ed piece here.