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Why the latest Patriot Act reform won’t be enough to rein in the NSA

An executive order first signed by President Ronald Reagan has become a major source of NSA spying authority.
An executive order first signed by President Ronald Reagan has become a major source of NSA spying authority.
NBC/NBC NewsWire/ Getty

Recent debates over US government spying have focused on one specific program: the National Security Agency's bulk collection of Americans' telephone records — and the Patriot Act provision that supplied the program's legal justification. From that perspective, the partial expiration of the Patriot Act a week ago and the subsequent passage of surveillance reform legislation might seem like a decisive victory against mass surveillance.

But the surveillance debate is actually a lot bigger than the phone records program and the Patriot Act. The NSA has other spying programs with other legal foundations. And the USA Freedom Act, which President Obama signed on Tuesday, doesn't do anything to rein them in.

On Friday, I talked to John Napier Tye, a former State Department official who resigned last year over what he regards as unconstitutional surveillance by the US federal government. He sees the USA Freedom Act as "a small step in the right direction," but he's hoping the next step will be a broader debate about other ways the US government spies on innocent Americans.

Tye says the most intrusive NSA programs are based on an obscure executive order

Most people have heard about the Patriot Act, which was signed just weeks after the 9/11 attacks, and was reformed this week by the USA Freedom Act. But Tye argues the real action is elsewhere.

"You have to keep in mind that most NSA collection on Americans was not under the Patriot Act. It was under other legal authorities. And none of that surveillance is affected by this new law," he says. "When you think about all the collection that the NSA has been doing on Americans, a small percentage — 5 or 10 percent, maybe less — was under the Patriot Act."

Tye points to two other sources of authority for government spying. One is the 2008 FISA Amendments Act, which is the legal basis for a controversial NSA program called PRISM that collects private data from major internet companies like Google and Facebook. The other is Executive Order 12333, a Reagan-era directive that has become the basis for a lot of NSA spying.

Tye says that EO 12333 is "an executive order, it's not a statute. It was never passed by Congress. It was originally issued by President Reagan in 1981 and has been amended several times since then — including by George W. Bush."

EO 12333 "gives a very broad grant of authority to intelligence agencies to do all kinds of things," Tye says. "There's one section in there that allows the NSA to collect data on US persons as part of a lawful foreign intelligence investigation. That provision is being used to collect a huge amount of Americans' communications and data."

When the government collects information overseas, it isn't bound by most US surveillance laws. The NSA has reserved the right to "incidentally" collect Americans' private communications overseas so long as Americans are not the target of a particular surveillance effort. But Tye argues that this is a huge loophole in practice.

"I don't think most Americans understand that almost all of their internet and phone data is either stored on backup servers overseas or transits outside of our borders," he says. "A huge amount of our data is collected under this authority outside the borders of the US — Gmails and Yahoo messages, Facebook messages, Apple iMessages, Twitter, every service you can think of."

Tye was briefed on NSA spying after the Snowden disclosures

Tye says he has firsthand knowledge of the extent of NSA spying programs. That's because he was an official in the State Department's Bureau of Democracy, Human Rights, and Labor in 2013 when Edward Snowden's revelations became public.

"My jobs was internet freedom, promoting free and open internet around the world," Tye says. "When the Snowden leaks happened in June of 2013, I was not surprised. I knew that a lot of stuff had been happening. I knew that a lot of surveillance was going on that no one knew about. And it didn't surprise me that this was finally front-page news."

Tye says that after the Snowden leaks, "part of my job was to help develop responses to initiatives within the UN Human Rights Council and the UN General Assembly by Germany, Brazil, and other countries that were very concerned with online privacy. To be able to properly negotiate those efforts, I was briefed on the scope of US intelligence practices. In two different classified briefings, one in the fall of 2013 and one in the first part of 2014, I learned about activities under 12333."

Tye believed these programs were unconstitutional and began filing complaints inside the government about them. He met with the intelligence committees in both the House and the Senate and filed complaints with the inspectors general of both the State Department and the National Security Agency. He says none of them were very interested in the issue.

So last summer, Tye quit his job and went public with his concerns in an op-ed for the Washington Post. He says he ran the op-ed through government censors to make sure it didn't disclose any classified information. Tye has spent the last year at the public interest group Avaaz and is now starting his own law firm that will focus on civil rights and human rights issues.

Tye wants more congressional scrutiny of NSA surveillance programs

Tye would like President Obama to unilaterally revise Executive Order 12333 to better protect the privacy of Americans. If Obama doesn't, Tye would like Congress to hold hearings on the issue. "I think that Congress should take a more active role in overseeing executive branch activity under 12333," Tye says. "Congress should hold hearings and find out what protections really exist for Americans and how much our data is being collected."

He also favors reforms to the FISA Amendments Act, which was passed by Congress in 2008. Whereas some provisions of the Patriot Act were set to expire this year — and have now been renewed until 2019 — the FISA Amendments Act is permanent. The most controversial part of the FISA Amendments Act is Section 702, which allows warrantless surveillance to collect Americans' communications so long as the target is a foreigner located overseas.

"Under Section 702, the NSA is collecting a lot of stuff inside the United States that's nominally targeting foreigners but in fact is scooping up innocent communications from hundreds of millions of Americans," Tye says. Even worse, "the FBI has access to that database and can search it for domestic criminal reasons. So the purpose of the law nominally was to allow the NSA to conduct foreign intelligence investigations. But as it's currently being used, the FBI is using this data for domestic criminal investigations. The protections that we normally want in place for domestic criminal investigations are not necessarily there."