
Executive Order 12333: The Reagan rule that lets the NSA spy on Americans - rosser
http://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html
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dmix
> But the White House counsel’s office told me that no, that wasn’t true. I
> was instructed to amend the line, making a general reference to “our laws
> and policies,” rather than our intelligence practices. I did.

And this is how we got to where we are. It has nothing to do with the
advancement of technology, technology only increased their power to the point
where they couldn't be easily ignored anymore. It is the absence of law. Or,
at least law as we understand it from a civillian perspective. It is power
that comes only from the executive branch and is monitored only by the upper
tiers of power, not by typical political oversight.

Spies operate in a different moral and legal environment than civilians are
used to, which makes it hard to understand when daylight is shone on them. But
this near duality of interpretation has been the case in modern society since
the 1950-60s. Or maybe even earlier.

Anyone who grew up reading cold war spy novels or autobiographies from that
era is well aware of this hierarchy.

~~~
tedks
As Mao said, political power flows from the barrel of a gun. American
autocrats aren't much different.

------
rcaught
I think this is a good article, but I am often frustrated by discussions on
digital privacy having such limited scope. It should be an international
debate with a focus on international laws, or we are all in denial about what
is at stake for the individual. This is bigger than Americans talking about
American law that targets Americans.

I know many of you probably rolled your eyes at the mention of international
law, but an individual's privacy on the Internet is an international problem
(regardless of how effective you think international law is).

On the Internet, we are citizens of the world. We are all exploited at the
horrible intersection of localized law, globalized technology and 20th century
geography. Idealistically, the sooner that we realize two of those elements
should be superseded, the better.

~~~
jsmeaton
I agree with you in principle (I'm not an American), but I think the
practicality is a little hard to enforce.

If, for example, the US discover China violating the privacy of US citizens -
are they going to start dropping bombs? Attempting to place trade
restrictions? You kind of need everyone to agree to the same laws, and
particular ways to address failure to adhere to those laws. Not an easy
problem, but one I hope can be solved.

~~~
Perseids
What's even worse is that we are not only talking about the privacy laws
targeted at corporations - who alone have proven to be difficult, see the
discussions between the EU and the US - but about privacy laws targeted
against intelligence services. And governments are especially stubborn that
those should remain secret and unrestricted...

------
DanielBMarkham
I feel like we're getting a little lost in the weeds here with all the
references to paperwork. While I'm certain that everything in this article is
on the level, whether it's part of the Patriot Act or Executive Order 12333 is
a bit arcane. NSA was recording all overseas calls long before Reagan. During
the Cold War and the subsequent War on Terror, the US has basically let the
spy agencies run rampant.

And that's the structural problem: there is no system of checks and balances.
Here we have members of the legislative branch saying they have no idea what's
in various orders and are unable to provide oversight. This is their job! We
have the executive branch cutting out the judicial branch in matters involving
the Fourth Amendment. Once again, this is the court's job. The executive has
nothing to do with anything here.

Both other branches of government are free at any time to step in and take
control. The Congress can shut off funding, hold public hearings, and start
sending people to jail. The courts can enjoin various agencies to put a stop
to onerous activities. We have all sorts of constitutional levers. Nobody
seems to want to use any of them.

And so, if the other two branches of our government are going to check-out of
doing their job, the executive and hte intelligence agencies will happily step
in and make up their own rules and systems of accountability. What we seem to
have created is not a system safeguarding the constitution; rather we've
created a system where nobody can be individually accountable if anything goes
wrong. Everybody has a little bit work to do that on paper appears to make
sense. But when you add it all up it doesn't do what it's supposed to do:
defend our way of life while protecting us from those who wish to do us harm.

If the other branches of government would get in the game, we might have a
chance of straightening this all out. But I don't see that happening any time
soon.

------
unclebucknasty
> _some intelligence practices remain so secret, even from members of
> Congress, that there is no opportunity for our democracy to change them._

This should never happen. Period. Who makes the decision that the people's
representatives no longer have the authority to oversee what the people's
government is doing? And, when this happens, whose interests are being served?

At a minimum, there should be some group in Congress with the clearance
required to be privy to _all_ activities. Anything less and we are,
effectively, institutionalizing a dangerous discretionary approach to
Constitutional protections and relegating the integrtity of our freedoms to
the hope that other Snowdens will sacrifice and step forward to "break the
law" should the need arise.

Not a good look for democracy.

~~~
csandreasen
> At a minimum, there should be some group in Congress with the clearance
> required to be privy to all activities.

There are - in particular, the House and Senate Intelligence Committees and
Judicial Committees. In fact, with regards to certain programs, the NSA has
given briefings open to the entire Congress. The problem is that half of
Congress doesn't bother to show up.

[https://thehill.com/homenews/senate/305765-senators-skip-
cla...](https://thehill.com/homenews/senate/305765-senators-skip-classified-
briefing-on-nsa-snooping-to-catch-flights-home)

[http://www.msnbc.com/msnbc/patriot-act-architect-cries-
foul-...](http://www.msnbc.com/msnbc/patriot-act-architect-cries-foul-nsa-
progr)

[http://www.emptywheel.net/2013/06/06/jim-sensenbrenners-
hors...](http://www.emptywheel.net/2013/06/06/jim-sensenbrenners-horseshit-
claims-of-innocence/)

[http://www.huffingtonpost.com/2013/06/11/harry-reid-
nsa_n_34...](http://www.huffingtonpost.com/2013/06/11/harry-reid-
nsa_n_3423393.html?utm_hp_ref=politics)

~~~
unclebucknasty
Yet, this article states that some practices remain secret, even from
Congress. Do you know why there is inconsistency between this claim and the
claim you're making?

------
Perseids
> Without any legal barriers to such collection, U.S. persons must
> increasingly rely on the affected companies to implement security measures
> to keep their communications private.

I kind of despair when I read such statements. How is a company like Google
supposed to protect against an attacker that has legal access to parts of
their network, actively researches zero day exploits, bribes or subpoenas
employees to work with them and bugs their hardware when it is sent via mail.

The only thing we could do on the technological side would be to re-
decentralize our communications with added end-to-end encryption. While I'm a
huge fan of that, I don't see it happening anytime soon given the ever
increasing cloud computing hype. The usability of some services would also
certainly take a hit. And even then our metadata will remain public.

What is really necessary is a huge cultural shift in the executive branches of
our governments. Not just some small reform but a powerful independent
investigation board to uncover what the agencies are allowed to do, believe to
be allowed to do and actually do.

~~~
Zigurd
> _How is a company like Google supposed to protect against an attacker that
> has legal access to parts of their network, actively researches zero day
> exploits, bribes or subpoenas employees to work with them and bugs their
> hardware when it is sent via mail._

The same way they would defend you against a mafia-run state while you are
traveling. You have to assume the the government is a hostile party, and has
nation-state resources and police powers to apply to the task of taking your
data. Even if we can get the NSA's activities under control, you won't be able
to do that with all governments in all nations.

Web-of-trust, open secure client software, and strong encryption all work. We
should help this along by steering the NSA's resources toward defending
American people and enterprises from state-actor attacks, but the bottom line
is: trust nobody.

