President Joe Biden issued an executive order (EO) that allows the government to spy on Americans for broadly defined reasons including understanding “public health risks,” “political instability,” and the “threat” of climate change.
The October 7 EO is ostensibly written to “enhanc[e] safeguards” for “United States Signals Intelligence Activities,” which is intelligence gathering by the interception of signals, including communications, such as through cell phones, or those not used in communication.
An accompanying fact sheet explains that the EO is meant to help “implement the U.S. commitments under the European Union-U.S. Data Privacy Framework (EU-U.S. DPF)” in an effort to “restore trust and stability” to transatlantic data flows. Thus, both Europeans and Americans are subject to the EO’s provisions.
The EO attempts to allay civil liberties concerns by explicitly prohibiting signals intelligence collection for the purposes of “suppressing or burdening criticism or dissent,” for example. However, the stated “legitimate objectives” of such signals intelligence collection opens the door to an extremely broad array of permitted reasons for interception — in other words, spying — by the U.S. government.
Alongside permitting spying for the purposes of sizing up the capabilities of foreign entities, the EO permits signals intelligence collection for “understanding or assessing transnational threats that impact global security, including climate and other ecological change, public health risks, humanitarian threats, political instability, and geographic rivalry.”
The document’s lack of elaboration on such so-called “transnational threats” raises the question of the true scope of activity now officially subject to spying by the U.S. government, which is potentially massive.
Assessing the “threat” of climate change, for example, could theoretically include collecting satellite signals to track the car travel of Americans and Europeans since car emissions are considered by climate activists to be one of the top sources of greenhouse gases.
The document’s wording also raises the question of what kind of activities are considered a threat to “political stability,” since Biden has declared that “MAGA Republicans” “represent an extremism and a threat to the very foundations of our republic,” and claimed that they “do not respect the rule of law.”
He suggested such “extremism” is constituted by conservative beliefs in the right to life from the moment of conception, and in traditional marriage, declaring that “MAGA forces are determined to take this country backwards … to an America where there is no right to choose … no right to marry who you love.”
“Understanding and assessing” a “public health risk” could also potentially entail tracking a wide range of information, including travel patterns and social activities, shopping habits, and genetic information such as that disclosed by the DNA testing service 23andMe.
While the signals intelligence EO provides for tighter restrictions on “bulk” collection of signals intelligence, as opposed to “targeted” collection, no guidelines on how to target signals intelligence are provided for, raising further privacy questions, especially regarding the above-mentioned broad political, health, and climate-related government objectives.
The EO is arguably a legal “backdoor” to surveillance of Americans because under Section 702 of the Foreign Intelligence Surveillance Act (FISA), passed in 2008, the National Security Agency (NSA), operating inside the United States, is authorized to collect communications of foreigners overseas for foreign intelligence purposes” without a warrant, “because courts have held that foreigners have no Fourth Amendment rights,” according to Elizabeth Goitein.
“Although ostensibly targeted at foreigners, Section 702 surveillance inevitably sweeps in massive amounts of Americans’ communications,” Goitein further noted.
“Recognizing the impact on Americans’ privacy, Congress required the NSA to ‘minimize’ the sharing, retention, and use of this ‘incidentally’ collected U.S. person data. But the government and the FISA Court have embraced an interpretation of ‘minimize’ that is remarkably … maximal.”
“The NSA shares raw data with multiple other agencies — including the FBI and the CIA — and all of them retain the data for a functional minimum of five years. Moreover, the FBI routinely combs through it looking for Americans’ communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation,” Goitein continued.
Privacy advocates have warned for over two decades that the Patriot Act, enacted in the wake of the 9/11 terrorist attacks of 2001, granted the government the authority to “to spy on ordinary Americans” and their phone and email communications, bank and credit reporting records, and Internet activity, all in the name of national security.
A Conservative Treehouse editorial recently went so far as to allege that “surveillance of domestic communication, to include surveillance of all social media platforms, is now the primary mission of the Department of Homeland Security (DHS),” and that this information is “gathered by social media, funneled … into the DHS network then distributed to DOJ-NSD (Department of Justice – National Security Division) and Federal Bureau of Investigation (FBI) officials as well as the Office of the Director of National Intelligence.”
The author argued that the government circumvents the Fourth Amendment, which requires a warrant for electronic searches, through private partnerships, such as with Big Tech, who can provide a database “for the Intelligence Branch to exploit.”
In 2013, whistleblower Edward Snowden – who worked as a contractor for the CIA – leaked highly classified government documents from the NSA revealing how the federal government was “hyper-collecting of metadata of millions of Americans with no connection to terrorism.”
Other whistleblowers at the time confirmed that these federal agencies are “collecting everything,” “no digital communication is secure,” and these capabilities allow authorities to “target anybody in the country” they desire.
Attempts to politically weaponize such surveillance information have already been made, according to prominent voices such as Tucker Carlson, who said in 2021 that a “whistleblower within the U.S. government” had “reached out to warn us that the NSA is monitoring our electronic communications and is planning to leak them in an attempt to take this show off the air.”