The legacy and legality of 12333

Between 15th-19th of September, 2014, in the week leading up the first year anniversary of the International Principles on the Application of Human Rights to Communications Surveillance, Access and the coalition behind the 13 Principles will be participating in a Week of Action to help explain the foundation for the principles. Every day, we’ll take on a different part of the principles, exploring what’s at stake and what we need to do to bring intelligence agencies and the police back under the rule of law.

You can read the complete set of posts at:

Surveillance laws can no longer ignore our human rights. Follow our discussion on twitter with the hashtag: #privacyisaright


In December 1981 — with Kim Carnes’ “Bette Davis Eyes” ruling the pop charts and Indiana Jones’ adventures inspiring budding archaeologists everywhere — President Ronald Reagan signed Executive Order 12333, giving U.S. intelligence agencies more power to direct federal agencies to conduct surveillance. More than 20 years later, George W. Bush signed two more executive orders that strengthened and expanded these same powers. President Obama has continued the legacy of, and expanded his administration’s authority under, the order.

The legacy of EO 12333
Today, we’re living with the result of the Obama Administration’s secret interpretations of EO 12333: An unchecked, unaccountable surveillance state in which key decisions about whether and how to collected millions of peoples’ most personal data are made behind closed doors, without any oversight from other branches of government or the general public. Executive orders are not the result of debated legislation — they’re embodiments of executive authority, rendered unilaterally and, on occasion, secretly — and as such they aren’t subject to oversight or review by the judiciary or by Congress, much less scrutiny from the general public.

When policies that harm our basic rights aren’t subject to checks and balances from all three branches of U.S. government, we’re looking at a basic violation of Legality, one of the core International Principles on the Application of Human Rights to Communications Surveillance:

LEGALITY: Any limitation to human rights must be prescribed by law. The State must not adopt or implement a measure that interferes with these rights in the absence of an existing publicly available legislative act, which meets a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee its application. Given the rate of technological changes, laws that limit human rights should be subject to periodic review by means of a participatory legislative or regulatory process.

What we know about EO 12333
It’s frightening to know that the Obama Administration’s mass surveillance program depends on a secret interpretation of a Reagan-era executive order — and, other than through a few helpful leaks, that the public has effectively no way of knowing how the Administration is interpreting EO 12333, and what’s it’s doing with those interpretations. However, here are a few programs that the U.S. conducts under the authority of EO 12333:

Reigning it in
When he first passed EO 12333, Ronald Reagan was acting according to the imperatives of his time, as presidents do. No matter the faded reasons for Reagan’s initial action, today the order is being interpreted in a way that enables profound attacks our fundamental rights.

The politics of presidents’ use of executive orders aside, consider this: If the Obama Administration is making use of a decades-old order to conduct secret surveillance programs, what will the next administration use it for, and the next one, and the next? If the Obama Administration fails to come clean about its interpretations and implementations of these policies, we may be faced with a much more sinister government using a 70-year-old Executive Order to play even faster and looser with our fundamental rights.

That’s why Access recently joined four Members of Congress, three former government officials, and more than 50 organizations to call on the Obama Administration to come clean on how it’s interpreting and using EO 12333, and then to reform its policies to match with the principle of Legality, thereby respecting, once again, the human rights of internet users everywhere.

Right now, the fight is on to pass the the USA Freedom Act, a bill that, while imperfect, contains some of the reforms we need to help roll back the NSA’s overreaching programs. Once — and if — that goal is accomplished, we must immediately turn to EO 12333, and demand that the Administration bring its practices in line with the Legality principle.