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NSA’s Hack Of Google And Yahoo Traces Back To Reagan Executive Order (page 2)

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Reagan’s 1981 Executive Order 12333 for the first time in a public, written record allowed foreign covert action to be conducted from inside the U.S. The measure, amended several times after 9/11, outlines key rules for more than a dozen intelligence agencies. It spells out when spies are allowed to peek into mail, homes and electronics, identifies who has to approve of specific searches, and details how to carry out clandestine collection of foreign intelligence.

“What NSA does is collect the communications of targets of foreign intelligence value, irrespective of the provider that carries them,” the agency said, likening the data channels at private firms to super highways.

In other words, the NSA is not targeting information about Google and Yahoo as such, but is conducting surveillance on foreigners using the services these companies provide, said University of Indiana law professor David Fidler. But Fidler says this explanation ignores the fact that the NSA is directly targeting the facilities of U.S. companies, “even if the information ostensibly sought concerned foreign persons.”

Even Google’s chairman Eric Schmidt, outraged by the invasion, says he’s not sure it is illegal, telling CNN the operation is “perhaps a violation of law but certainly a violation of mission.”

It is unclear exactly how the intrusions were carried out, but Daniel Castro, senior analyst at the Washington nonprofit Information Technology and Innovation Foundation, suspects the surveillance required a computer savvy person either working for the NSA, another government, or a contractor, to physically get inside a network provider’s facilities to tap into the fiber optic network and route a copy of the online traffic into their own network. The set up could be similar to a secret NSA room built into an AT&T building in San Francisco in 2002 and made public by a retired AT&T staffer in 2007.

The Post reported that the NSA isn’t breaking into accounts as they sit, stored in data centers, but is able to gather the emails and other communications as they move between them.

The NSA says that if they accidentally scoop up extra, non-criminal related information from Americans, there are strict limits about how it can be used. But there’s no guarantee those limits apply if British intelligence agents are doing the rerouting and then turning information over to the NSA, and the Obama Administration will not talk about their methods.

Thus the immediate pushback from advocates is a loud call for new laws.

“It’s a relatively new phenomenon that the government is sweeping through American communications outside the U.S., so there haven’t been a lot of legal decisions,” said American Civil Liberty Union’s national security project attorney Patrick Toomey. “We think that these revelations show the ways in which the surveillance laws are in desperate need of reform. The location in which surveillance and collection occurs no longer matters.”

Those reforms are already underway, spearheaded by the USA FREEDOM Act introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Congressman Jim Sensenbrenner (R-Wisc.), chairman of the Crime and Terrorism Subcommittee in the House; the proposed legislation, which is widely supported by the tech industry including Google, seeks to limit the NSA’s surveillance powers both here and abroad. The bill appears to have bipartisan support.

But it might not go far enough for Kel McClanahan, executive director of National Security Counselors, which represents clients involved in security or privacy law-related proceedings. McClanahan says in addition to the broad privacy questions, there’s a problem with the NSA actions when it comes to attorney-client privilege. Working with an attorney in the United Kingdom, McClanahan is currently fighting a legal Freedom of Information Act battle with the NSA, seeking documents related to Sharif Mobley, a U.S. citizen charged with terrorism in Yemen. Under current law, says McClanahan, the NSA could ostensibly tap into the private communications between himself and the British attorney he is working with, and read the litigation strategies as he and the British attorney plan them.

“From what I can tell, what they’re doing is technically legal because of the lack of any law prohibiting it,” he said.

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