Until last week, there were effectively no substantive restrictions on EO 12333 collection: EO 12333 defines “foreign intelligence” to include information relating to the activities of any foreign person or entity. Under both Section 702 and EO 12333, agency officials are allowed in most cases to search through the collected information for Americans’ data without obtaining a warrant.Īdditional restrictions on Section 702/EO 12333 surveillance are thus critical for Americans’ privacy, as well as for data transfers from EU to U.S.
Because Americans’ communications are routinely routed through or stored in other countries, bulk collection overseas inevitably sweeps in not only Americans’ international communications, but purely domestic communications as well. government can and does engage in bulk collection of communications and other data. More broadly, under EO 12333, there is no requirement for surveillance to be “targeted” at all: The U.S. For one thing, such surveillance acquires any communications between foreign targets and Americans.
companies (Section 702) is subject to legislative limitations and judicial oversight by the Foreign Intelligence Surveillance Court (“FISA Court”), while collection outside the United States (EO 12333) is not.Įven though Section 702 and EO 12333 surveillance activities may not target specific Americans, they have an enormous impact on Americans’ privacy. In general, collection inside the United States or from U.S. Such surveillance is governed by Section 702 of FISA or Executive Order (EO) 12333, depending on where the collection itself takes place.
persons” under the law.) The order’s main application, therefore, is to surveillance that doesn’t target specific Americans. (“Americans” is used here as shorthand for U.S. The order doesn’t supplant the Foreign Intelligence Surveillance Act (FISA), which, for the most part, affords more protection to Americans than the order does. The Surveillance at Issueīefore evaluating the order’s impact on privacy, it’s important to understand the type of surveillance at issue. Part II, by Ashley Gorski of the American Civil Liberties Union, will delve into the provisions of the order establishing a process to resolve allegations of unlawful surveillance. Part I will focus on the substantive criteria for the collection and use of signals intelligence.
#Joe biden executive orders record series
This two-part series will examine how the executive order impacts privacy rights. Only fundamental reform by Congress can solve that problem. That’s a problem, not only for the viability of the new U.S.-EU agreement, but for the privacy rights of Americans who get swept up in foreign intelligence surveillance. However, the scope of permissible surveillance remains far too broad-indeed, the executive order expressly permits bulk collection of signals intelligence. The creation of a hybrid governmental-private court to hear foreign nationals’ claims of unlawful surveillance is particularly significant. The executive order attempts to cure that defect by extending greater privacy protections to foreign nationals.ĭoes the order succeed? It certainly gives foreign nationals more protection against unfettered surveillance than they previously had. law doesn’t adequately safeguard EU citizens’ privacy. Previous versions of that agreement were invalidated by the Court of Justice of the European Union (CJEU) because U.S. The immediate purpose of the order is to pave the way for an agreement between the United States and the European Union (EU) governing data transfers between EU and U.S. 7, President Biden issued an executive order establishing rules for “signals intelligence activities”-basically, electronic surveillance-conducted by the United States for foreign intelligence purposes.
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