Executive Order 12333, issued in 1981 and amended in later administrations, remains the principal presidential framework for foreign intelligence collection conducted outside the Foreign Intelligence Surveillance Act. The National Security Agency’s targeting and minimization procedures under that order, portions of which were declassified in 2014 and 2017, set conditions for selecting foreign intelligence targets and for handling communications that include U.S. persons. Those documents describe a standard of reasonable belief that a target is a non-U.S. person located outside the United States, together with minimization rules for information acquired incidentally.

The Office of the Director of National Intelligence publishes an annual Statistical Transparency Report regarding Use of National Security Authorities. The reports tabulate, among other figures, Section 702 targets, U.S.-person query counts against 702 data, National Security Letters, and certain pen-register and trap-and-trace authorizations. They also include narrative discussion of other authorities. They do not present a parallel statistical series for collection conducted solely under Executive Order 12333.

According to the declassified NSA procedures, targeting under 12333 is not framed as a court-authorized electronic surveillance of a U.S. person in the United States. Collection may nonetheless acquire communications to, from, or about U.S. persons when those persons communicate with foreign intelligence targets, when multiple parties share a facility, or when data are obtained in bulk or in large streams overseas. Minimization procedures require masking of U.S.-person identities in certain disseminations and restrict querying and retention, subject to exceptions for foreign intelligence, counterintelligence, and crime. The procedures do not themselves require public statistical reporting of the volume of U.S.-person communications acquired.

ODNI reports have repeatedly stated that certain 12333 activities are not amenable to the same counting methodology used for FISA because they are not predicated on individual court orders and because collection systems overseas do not always distinguish U.S. persons at the point of acquisition. Officials have described 702 as the authority for which the government can most readily produce target and query statistics. Public versions of the reports have included footnotes and methodology notes to that effect.

The Privacy and Civil Liberties Oversight Board examined 12333 collection in a 2014 report and in later work. The Board’s public statements and the government’s responses, as reflected in congressional testimony, noted that 12333 collection of communications of or about U.S. persons can be substantial in volume even when U.S. persons are not the intended targets. The Board recommended greater transparency regarding the scope of such collection. Subsequent ODNI reports incorporated some additional narrative on 12333 but did not add a 702-style table of 12333 U.S.-person communications acquired or queried.

Inspector-general reviews of NSA activities, including those summarized in unclassified portions of Intelligence Community Inspector General and Department of Defense Inspector General products, have addressed compliance with 12333 procedures, querying of U.S.-person identifiers, and retention. Those reviews describe incidents of noncompliance and remedial training. They do not substitute for an annual statistical series comparable to the 702 figures.

Congressional overseers, including members of the Senate Select Committee on Intelligence in public hearings, have asked why 12333 incidental collection of U.S. persons is not counted in the same reports that list 702 queries. The Intelligence Community’s public position, as restated in ODNI reports and hearing transcripts, is that 12333 collection is conducted under presidential authority for foreign intelligence, that FISA statistics are a distinct legal category, and that operational and classification constraints limit precise public counts of overseas streams.

Budget justification books for the National Intelligence Program, in their unclassified summaries, list cryptologic and signals-intelligence activities without breaking out 12333 versus FISA collection volumes. Procurement and systems descriptions in those books refer to collection platforms that can support both FISA and non-FISA missions. The public record therefore shows overlapping technical infrastructure without a published allocation of how much U.S.-person traffic is acquired under each legal heading.

Declassified 12333 procedures require that targeting be for a foreign intelligence purpose and that selectors be associated with non-U.S. persons abroad, subject to the reasonable-belief standard. They also address “about” collection and downstream querying. ODNI statistical reports, by contrast, have focused counting on authorities that involve FISC orders or statutory reporting mandates. The gap between those two public artifacts—the procedure documents and the statistical tables—is therefore structural: one set describes how targeting and minimization are supposed to work; the other counts a subset of legal authorities that Congress has required the executive to quantify.

Later ODNI reports added limited additional discussion of U.S.-person queries of 12333 data in certain contexts and of the interaction between 702 and 12333 when data are mixed in analytic systems. They did not, according to the published tables, produce an annual figure for the number of U.S. persons whose communications were acquired under 12333 or for the number of such communications retained. Civil-liberties organizations and some members of Congress have treated that omission as the central transparency issue; the Intelligence Community has treated it as a consequence of how 12333 collection is conducted and classified.

The public docket therefore consists of procedure text, inspector-general findings of compliance shortfalls, ODNI methodology notes explaining why 12333 is not fully counted, and budget lines that do not disaggregate the two regimes. No classified document is cited here. The record that is public shows targeting rules that contemplate incidental U.S.-person collection and statistical reports that do not enumerate that collection on the same basis as FISA 702.