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

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.