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New Report: NSA’s Overseas Surveillance Activities Pose Major Privacy Risks to Americans, Have Little Oversight

A new Brennan Center report finds that the NSA’s overseas surveillance activities, most of which remain shrouded in secrecy, greatly impact Americans’ privacy.

March 16, 2016

New York, N.Y. — Recent debates about privacy and tech­no­logy have focused on the actions of govern­ment agen­cies inside the U.S. — for example, the Federal Bureau of Invest­ig­a­tion’s efforts to break encryp­tion on iPhones or the National Secur­ity Agency’s bulk collec­tion of Amer­ic­ans’ phone records.  But a new Bren­nan Center report finds that the NSA’s over­seas surveil­lance activ­it­ies, most of which remain shrouded in secrecy, may have a far greater impact on Amer­ic­ans’ privacy.

Over­seas surveil­lance takes place under Exec­ut­ive Order (EO) 12333, a direct­ive issued by Pres­id­ent Reagan in 1981 and supple­men­ted by numer­ous guidelines and direct­ives. These author­it­ies allow the NSA to engage in bulk collec­tion of tele­phone calls, e-mails, and phone and Inter­net metadata, as well as collec­tion of all commu­nic­a­tions mention­ing certain broad topics of conver­sa­tion. Because Amer­ic­ans’ data is routinely routed or stored over­seas, it can easily get caught up in the EO 12333 net. 

The report, Over­seas Surveil­lance in an Inter­con­nec­ted World

  • exam­ines several repor­ted EO 12333 programs and illus­trates the ways in which Amer­ic­ans’ data might be swept up in them;
  • analyzes publicly avail­able guidelines for EO 12333 programs and finds crit­ical gaps in protec­tion for Amer­ic­ans, as well as for foreign nation­als whose inform­a­tion may be shared with other govern­ments;
  • details the defi­cien­cies in the over­sight regime for EO 12333, includ­ing spotty legis­lat­ive over­sight and no judi­cial review; and
  • high­lights the many “known unknowns” that remain about EO 12333 surveil­lance — ques­tions that require answers if Amer­ic­ans are to make an informed demo­cratic choice about the govern­ment’s abil­ity to obtain their personal data.  

“EO 12333 oper­a­tions consti­tute the largest and — as our analysis suggests — poten­tially most intrus­ive of the nation’s surveil­lance activ­it­ies,” wrote authors Amos Toh, Faiza Patel, and Eliza­beth Goitein. “The fact that they are conduc­ted abroad rather than at home makes little differ­ence in an age where data and inform­a­tion flows are uncon­strained by geography, and where the consti­tu­tional rights of Amer­ic­ans are just as easily comprom­ised by oper­a­tions in London as those in Los Angeles.”

Read the full report, Over­seas Surveil­lance in an Inter­con­nec­ted World.

Attend a panel discus­sion on Exec­ut­ive Order 12333 in Wash­ing­ton, D.C. on Thursday, March 17, sponsored by the Bren­nan Center for Justice and Just Secur­ity.

Read more about the Bren­nan Center’s work on Liberty & National Secur­ity.

For more inform­a­tion or to sched­ule an inter­view, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.