NSA Claims Collecting Cellphone Location Data Is Legal Under Executive Order — From 1981

Today the National Security Agency (NSA) discussed its program that collects billions of cellphone location records each day. The NSA targets foreign phones but also absorbs data on the phones of American citizens.

“The NSA does not target Americans’ location data by design, but the agency acquires a substantial amount of information on the whereabouts of domestic cellphones ‘incidentally,’” according to the Washington Post, which broke the story concerning program based on documents provided by Edward Snowden.

Given that fact, the legal defense that the NSA outlined today for the program could be viewed as underweight. The agency cites Executive Order 12333, issued by then-President Ronald Reagan in 1981. The NSA stated that “the Agency’s EO 12333 collection is outward-facing. We are not intentionally acquiring domestic information through this capability.” The agency also has in place “minimization procedures,” according to its spokesperson.

However, as the agency does collect the location data of many Americans, its defense rests on the fact that it does so accidentally. Therefore, the “collection does not violate FISA [the Foreign Intelligence Surveillance Act].”

Citing an executive order from 1981 to legally undergird a program of immense technological complexity 32 years later may feel weak, but courts could uphold the justification.

Do They Or Do They Not

Here’s the Los Angeles Times, citing the federal government in late June when news of the phone metadata program was fresh:

The U.S. Justice Department has told a court in Florida that the government does not secretly track the location of Americans’ cellphones as part of its massive phone surveillance dragnet, but asking experts to believe that assertion has proved to be another matter.

It appears that assertion was false, as was the assertion that the NSA doesn’t collect data on millions of Americans. The defense against the above statement, regarding the Post’s recent piece, is that the NSA only meant that it doesn’t wittingly track the location of Americans’ cellphones.

However, as my colleague Greg Ferenstein pointed out yesterday:

The NSA also claims that only foreigners are targeted, but it does incidentally pick up data on potentially millions of Americans. Millions of people are connected to a target through two degrees of separation.

What will be interesting to see is if the legal foundation that the NSA cited today will be challenged, and if so, how sturdy it will prove. So far, efforts to force reform at the NSA through such means have been flat.

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