Executive Order 12333, which is not overseen by the FISA court

PRISM allows the NSA to collect people’s browsing histories, email contents and digital chats from major tech firms like Google, Facebook and Apple. Upstream lets the spy agency lift web browsing information off internet cables.

Both programs employ filters designed to grab only international chatter that matches an exhaustive list of selectors — such as email addresses and screen names — linked to nearly 100,000 targets. Still, the searches are so sweeping that surveillance specialists estimate millions or tens of millions of Americans make it into the NSA’s databases. In 2014, an independent government privacy watchdog found that the NSA was grabbing approximately 250 million internet communications annually under 702 programs.

“Even if only a small percentage of these … involved Americans, the number would be large in absolute terms,” said the report, from the Privacy and Civil Liberties Oversight Board.

Finally, incidental collection occurs under the even more secretive Executive Order 12333, which is not overseen by the FISA court. The presidential directive — first written in 1981 and amended several times — is for overseas spying where FISA falls short. It is not subject to certain FISA restrictions, such as the Section 702 selectors intended to narrow the targeted information.


Little is known about exactly what tools the government uses under 12333, and what data it collects. But documents leaked by former NSA contractor Edward Snowden revealed that the clandestine agency had a surveillance system operating under 12333 that could record “100 percent” of a foreign country’s telephone calls. Such a tool would inevitably incidentally collect Americans’ communications.

NSA analysts sifting through these databases can see everyone’s name, but they’re usually barred from sharing Americans' names in intelligence reports that go to other agencies.

Instead, an American’s name will be “masked” — replaced with something like “U.S. person 1.”

But a select group of NSA officials can choose to reveal the person’s identity if it is vital to helping other agencies understand the significance of the intelligence.


A small cadre of 20 people at the NSA have the authority to strip away the anonymity in these cases, the agency’s director, Adm. Mike Rogers, told lawmakers during a House hearing Monday. Senior intelligence officials at other agencies can also request an unmasking, he added.

The ACLU's Singh and others pointed to an 11th-hour change during the Obama administration that gave more intelligence agencies access to the raw, unmasked data collected under Executive Order 12333.

The move represents a trend, Singh said, that can be traced back to 2002. That year, the FISA court secretly allowed the FBI and CIA to search raw, unmasked intercepts gathered under FISA. While the move was intended to erase the intelligence silos that bedeviled the government before the Sept. 11 terrorist attacks, it also exposed Americans’ unfiltered private information to an expanding array of officials across the government.

“When it comes to [intelligence] reports there are procedures,” Singh said. “But when it comes to raw data, there are concerns that the [masking] procedures are not as robust.”
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