NSA tracks phone locations under executive order

The National Security Agency uses its authority under a 1981 executive order to collect cellphone location data around the world, the agency said Friday.

Congress never authorized the program, but an NSA spokeswoman argued that the collection does not violate the Foreign Intelligence Surveillance Act, which outlines certain NSA powers.

Citing documents leaked by Edward Snowden, The Washington Post reported Wednesday that the NSA collects nearly five billion records every day on the locations of cellphones in other countries. 

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The NSA issued a statement Friday providing more details about the program. It said the program is operated under Executive Order 12333, which was issued by President Reagan and governs surveillance in other countries.

The NSA spokeswoman said the agency "tries to avoid" collecting Americans' cellphone location information. 

"Again, the Agency's EO 12333 collection is outward-facing. We are not intentionally acquiring domestic information through this capability," the spokeswoman said.

She said that if the agency does incidentally collect the location information of an American, analysts apply "minimization procedures," and in some cases, destroy the records.

Under a previously revealed program, the NSA collects call logs, such as phone numbers, call times and durations, on virtually all U.S. phone calls. But the NSA spokeswoman said the agency "does not know and cannot track the location of every cell phone."

"This capability has been used in some of the most dangerous parts of the world, including war zones, where terrorists are actively planning to do harm to the nation," she said.

Catherine Crump, an attorney for the American Civil Liberties Union, noted that any NSA spying under Executive Order 12333 is not subject to oversight by the Foreign Intelligence Surveillance Court—a panel of federal judges who secretly review other NSA programs.

“The NSA claims its collection is incidental, but there is no question it’s deliberately engaging in the mass collection of cell phone location data that it knows will inevitably sweep up information on a huge number of innocent Americans. And, all of this is happening without any supervision by a court," Crump said in a statement to The Hill. 

"Unfortunately, this program is just one of many in which the NSA monitors countless innocent individuals to identify the tiny fraction who may be of interest. Fortunately these programs are now being brought into the light, and it’s time for Congress and the courts to exercise meaningful oversight of our intelligence agencies.”

—Updated with an ACLU comment at 5:37 p.m.