The executive order that led to mass spying, as told by NSA alumni

Feds call it “twelve triple three”; whistleblower says it's the heart of the problem.

by Cyrus Farivar - Aug 27 2014, 9:00pm EST

One thing sits at the heart of what many consider a surveillance state within the US today.

The problem does not begin with political systems that discourage transparency or technologies that can intercept everyday communications without notice. Like everything else in Washington, there’s a legal basis for what many believe is extreme government overreach—in this case, it's Executive Order 12333, issued in 1981.

“12333 is used to target foreigners abroad, and collection happens outside the US," whistleblower John Tye, a former State Department official, told Ars recently. "My complaint is not that they’re using it to target Americans, my complaint is that the volume of incidental collection on US persons is unconstitutional.”

The document, known in government circles as "twelve triple three," gives incredible leeway to intelligence agencies sweeping up vast quantities of Americans' data. That data ranges from e-mail content to Facebook messages, from Skype chats to practically anything that passes over the Internet on an incidental basis. In other words, EO 12333 protects the tangential collection of Americans' data even when Americans aren't specifically targeted—otherwise it would be forbidden under the Foreign Intelligence Surveillance Act (FISA) of 1978.