Former State Department Official Filed Whistleblower Complaint That NSA Surveillance Operations Violated 4th Amendment to the Constitution

Charlie Savage 

August 14, 2014 

Reagan-Era Order on Surveillance Violates Rights, Says Departing Aide 

John Napier Tye, a former State Department official, filed a whistle-blower complaint arguing that the N.S.A.’s broader data collection practices abroad violated Americans’ Fourth Amendment rights. Credit Stephen Crowley/The New York Times 

WASHINGTON — After President Obama delivered a speech in January endorsing changes to surveillance policies, including an end to the National Security Agency’s bulk collection of Americans’ domestic calling records, John Napier Tye was disillusioned. 

A State Department official, Mr. Tye worked on Internet freedom issues and had top-secret clearance. He knew the Obama administration had also considered a proposal to impose what an internal White House document, obtained by The New York Times, portrayed as “significant changes” to rules for handling Americans’ data the N.S.A. collects from fiber-optic networks abroad. But Mr. Obama said nothing about that in his speech. 

So in April, as Mr. Tye was leaving the State Department, he filed a whistle-blower complaint arguing that the N.S.A.’s practices abroad violated Americans’ Fourth Amendment rights. He also met with staff members for the House and Senate intelligence committees. Last month, he went public with those concerns, which have attracted growing attention. 

When operating abroad, the N.S.A. can gather and use Americans’ phone calls, emails, text messages and other communications under different — and sometimes more permissive — rules than when it collects them inside the United States. Much about those rules remains murky. The executive branch establishes them behind closed doors and can change them at will, with no involvement from Congress or the secret intelligence court that oversees surveillance on domestic networks. 

“It’s a problem if one branch of government can collect and store most Americans’ communications, and write rules in secret on how to use them — all without oversight from Congress or any court, and without the consent or even the knowledge of the American people,” Mr. Tye said. “Regardless of the use rules in place today, this system could be abused in the future.” 

Mr. Tye, 38, is speaking out as Congress considers amending the Foreign Intelligence Surveillance Act, which governs how the N.S.A. operates domestically. The legislation resulted from the uproar over leaks by Edward J. Snowden, a former agency contractor. 

But the proposed changes would not touch the agency’s abilities overseas, which are authorized by Executive Order 12333, a Reagan-era presidential directive. The administration has declassified some rules for handling Americans’ messages gathered under the order, but the scope of that collection and other details about how the messages are used has remained unclear. 

“The debate over the last year has barely touched on the executive order,” saidJameel Jaffer, an American Civil Liberties Union lawyer. “It’s a black box.” 

The Times interviewed nearly a dozen current and former officials about 12333 rules for handling American communications, bringing further details to light. The rules are detailed in an accompanying chart. 

By law, the N.S.A. cannot deliberately intercept an American’s messages without court permission. But it can “incidentally” collect such private communications as a consequence of its foreign surveillance. 

The volume of incidental collection overseas is uncertain. Officials, speaking on the condition of anonymity because of the delicate nature of the topic, said the N.S.A. had never studied the matter and most likely could not come up with a representative sampling. Mr. Tye called that “willful blindness.” 

Still, the number of Americans swept up under 12333 could be sizable. As the N.S.A. intercepts content in bulk from satellite transmissions and from overseas fiber-optic hubs, Americans’ messages in the mix can be vacuumed up. By contrast, when operating on domestic networks under FISA, the agency may engage only in targeted, not dragnet, collection and storage of content. 

Congress left the executive branch with a freer hand abroad because it was once rare for Americans’ communications to go overseas. But in the Internet era, that is no longer true. 

Large email companies like Google and Yahoo have built data centers abroad, where they store backups of their users’ data. Mr. Snowden disclosed that in 2012 the N.S.A., working with its British counterpart, Government Communications Headquarters, penetrated links connecting the companies’ overseas data centers and collected 181.3 million records in 30 days. 

Mr. Tye was a rebel within the system. Raised in a Boston suburb, he attended Duke University, Oxford as a Rhodes scholar, and Yale Law School. But his elite résumé and conservative appearance belie a history of nonconformity and social mission. 

At Duke, he avoided fraternities, wore his hair long, became a wilderness enthusiast and created his own major, fusing economics, computer science and mathematics. 

“I thought I was going to be a scientist,” Mr. Tye said in an interview. “But when I was graduating, I decided I wanted to do things that have more of an impact on real people.” 

After studying at Oxford, he researched hate groups for the Southern Poverty Law Center before arriving at Yale just as legal issues raised by counterterrorism policies after the Sept. 11, 2001, attacks were crystallizing. He joined a civil liberties litigation clinic. 

After Yale, he moved to New Orleans, where he represented poor people in housing-related problems. In early 2011, he landed a State Department job working on Internet issues. 

Then came Mr. Snowden’s disclosures. Mr. Tye had a vantage point on administration deliberations about proposed changes. By February, he was planning to leave the government and file a whistle-blower complaint. 

It yielded little. The House Intelligence Committee sent a letter saying it had “reviewed your allegations and has taken the action it deems appropriate in this matter.” The N.S.A. inspector general sent a similar letter, emphasizing that Mr. Tye had acknowledged that he did not know the rules for handling Americans’ messages. 

Brian Fallon, a Justice Department spokesman, defended the N.S.A.’s practices under the executive order as “respectful of the principles upon which the United States was founded and consistent with U.S. laws, including the Fourth Amendment.”

The proposal to increase protections for American messages gathered incidentally under Executive Order 12333 — the quiet rejection of which provoked Mr. Tye — came from a review group Mr. Obama appointed after Mr. Snowden’s leaks. 

Its report recommended three changes for such messages. First, it said, analysts should purge them from the 12333 storehouse upon detection, unless they have foreign intelligence value or are necessary to prevent bodily harm. 

A similar rule already exists, but has another major exception: Analysts must send any information about crimes to the Justice Department. The officials would not say how often criminal referrals have resulted. 

Second, the review group said, prosecutors should not use incidental 12333 intercepts of Americans as direct evidence in criminal proceedings against them. 

In practice, officials said, the government already avoids doing so, so as not to have to divulge the origins of the evidence in court. But the officials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence. 

Third, the review group said, analysts should not search the storehouse for an American’s messages unless a court finds probable involvement with terrorism. 

Officials said a current rule permits analysts to query for an American’s messages if the attorney general says the person is probably an “agent of a foreign power,” a broader category. Usually, they added, the N.S.A. also gets a court order for prospective surveillance. The only recent exception, one official said, involved a dead suspect. 

The N.S.A. is also permitted to search the 12333 storehouse using keywords likely to bring up Americans’ messages. Such searches must have “foreign intelligence” purposes, so analysts cannot hunt for ordinary criminal activity. 

For now, the N.S.A. does not share raw 12333 intercepts with other agencies, like the F.B.I. or the C.I.A., to search for their own purposes. But the administration is drafting new internal guidelines that could permit such sharing, officials said. 

The administration secretly changed the rules in November 2010 to allow the N.S.A. to analyze Americans’ metadata — information showing who communicates with whom, but not content — gathered under 12333, Mr. Snowden’s leaks showed. The agency may do so without outside permission and for any foreign intelligence purpose, not just counterterrorism. 

That means there are fewer restrictions on the agency’s use of Americans’ bulk metadata when gathered abroad than when gathered on domestic soil under FISA and court oversight. The N.S.A.’s 12333 power would not diminish under the bill to replace the phone metadata program. 

Aware of leak prosecutions, Mr. Tye, who now works for a civic activist network, estimates he has spent $13,000 on lawyers to make sure he stays within the lines. He drafted a Washington Post opinion column about 12333 by hand to avoid introducing any classified information on an insecure computer, and submitted it for prepublication government review. 

But he said he felt compelled to speak out. Because of Mr. Snowden’s disclosures, he said, there is growing awareness that it is now possible for the government to collect a huge share of private communications. The public and Congress, he argued, should decide what the rules for that growing power should be. 

“We are at an inflection point in human history,” he said.