By Mike Masnik
Tech Dirt

We recently noted that, despite it passing overwhelmingly, Congress quietly deleted a key bit of NSA reform that would have blocked the agency from using backdoors for surveillance. But this week something even more nefarious happened, and it likely would have gone almost entirely unnoticed if Rep. Justin Amash’s staffers hadn’t caught the details of a new provision quietly slipped into the Intelligence Authorization Act, which effectively “legitimized” the way the NSA conducts most of its mass surveillance. For a while now, we’ve discussed executive order 12333, signed by President Ronald Reagan, which more or less gives the NSA unchecked authority to tap into any computer system not in the US. Over the summer, a former State Department official, John Napier Tye, basically blew the whistle on 12333 by noting that everyone focused on other NSA programs were missing the point. The NSA’s surveillance is almost entirely done under this authority, which has no Congressional oversight. All those other programs we’ve been arguing about — Section 215 of the Patriot Act or Section 702 of the FISA Amendments Act — are really nothing more than ways to backfill the data the NSA has been unable to access under 12333. In other words, these other programs are the distraction. 12333 is the ballgame, and it has no Congressional oversight at all. It’s just a Presidential executive order.

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