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Executive Spying Goes Further than the Patriot Act

On Sunday, the Senate will vote on reauthorizing Section 215 of the Patriot Act, the controversial section that allows the bulk collection of telephone metadata. Actually, it doesn’t allow it, according to the 2nd Circuit Court of Appeals, but everyone is still acting like it does and framing the debate accordingly.

Some people are pushing for the House-passed USA Freedom Act, which purports to end bulk surveillance, while others want to sunset Section 215 altogether, in the hopes of pulling the rug out from NSA spies. What few people want to acknowledge, however, with the notable exception of Sen. Rand Paul, is that Section 215 is only a small piece of a larger mass-surveillance puzzle. It could go away tomorrow, and law enforcement agencies could still scoop up your data – not just metadata, but actual content – with legal impunity.

How, you ask? Through the use of Executive Order 12333. This order was first issued in 1981, but due to the secretive nature of executive regulation the extent to which it has been used has not been known until recently. In 2014, whistleblower John Napier Tye revealed to the Washington Post that this order allows the collection and retention of “incidentally collected” of U.S. citizens, even those who are under no suspicion of wrongdoing.

What this means is that, when the NSA sweeps up a large amount of data in bulk in the course of an investigation, anything they happen to collect is fair game for them to store indefinitely. What they do with that data next remains unclear, but there seems little point in retaining it if there is no intention to search the records at some point.

The order doesn’t just apply to the NSA. It also covers the FBI, the CIA, and the Office of Terrorism and Financial Intelligence. So while the NSA makes a convenient target for reform due to its high name ID and relative unpopularity, it is a mistake to pretend that it is the only agency committing privacy abuses.

Since 12333 is not a statute on the books, but rather a direct order from the nation’s chief executive, it is not subject to the same scrutiny, either public or congressional, as actual laws like the Patriot Act. It cannot be repealed, because there is no law to repeal. The only way to stop the bulk spying authorized under the order is with affirmative legislation forbidding the government from collecting and storing the data of innocent people.

There are several proposed bills that would do this. The Surveillance State Repeal Act bans bulk spying under Executive Order 12333, and the End Warrantless Surveillance of Americans Act goes even further, forbidding the use of any executive orders to authorize bulk spying without a specific warrant. FreedomWorks has issued letters of support for both bills.

The current debate on the Patriot Act is important, but Americans need to realize that the government’s ability to spy on them at will goes much deeper, and will take a lot more effort to root out and end.