Unmasking by U.S. intelligence agencies

Unmasking by U.S. intelligence agencies typically occurs after the United States conducts eavesdropping or other intelligence gathering aimed at foreigners or foreign agents, and the name of a U.S. citizen or entity is incidentally collected. Intelligence reports are then disseminated within the U.S. government, with such names masked to protect those U.S. citizens from invasion of privacy. The names can subsequently be unmasked upon request by authorized U.S. government officials under certain circumstances.[1]

Jargon

When an intelligence agency spies on foreign citizens or agents, and information about innocent domestic citizens is uncovered even though they are not targets of investigation, that is called "incidental collection". If the intelligence agency is operating in a manner designed to protect privacy rights, then it normally addresses incidental collection by using a process called "minimization" which includes replacing names of innocent domestic citizens with designations like "U.S. Person One," "U.S. Person Two," et cetera, before the intelligence reports will be distributed within the government.[2]

There are essentially two types of incidental collection. The first type is when legitimate foreign intelligence targets are speaking about a domestic person. The second type is when a legitimate foreign intelligence target is speaking with a domestic person. If the domestic person information is deemed not to have intelligence value then it is purged from government databases, but otherwise can be disseminated with minimization; in the first type of incidental collection the domestic names will be redacted, and in the second type of incidental collection everything the domestic person says will be redacted. As former CIA official Michael Morrell has put it, "In the second type of incidental collection, where the U.S. person is actually part of the conversation, typically nothing that U.S. person says can be disseminated."[3]

United States law

In the United States, the various intelligence agencies such as the CIA, FBI and National Counterterrorism Center have their own distinctive minimization procedures and unmasking procedures, which were partially declassified in August 2016.[4] At the National Security Agency, about 20 people have authority to approve unmasking requests, according to NSA Director Michael S. Rogers.[2] Former FBI Director James Comey said that his agency necessarily has many more than 20 people with unmasking authority, which he attributed to the fact that the scope of the FBI's mission includes domestic affairs.[5]

The U.S. Government's minimization procedures stem primarily from the Foreign Intelligence Surveillance Act. Courts interpreting that statute have explained the purposes of minimization:[6][7]

[M]inimization at the acquisition stage is designed to insure that the communications of nontarget U.S. persons who happen to be using a FISA target's telephone, or who happen to converse with the target about non-foreign intelligence information, are not improperly disseminated. Similarly, minimization at the retention stage is intended to ensure that information acquired, which is not necessary for obtaining, producing, or disseminating foreign intelligence information, be destroyed where feasible. Finally, the dissemination of foreign intelligence information needed for an approved purpose . . . should be restricted to those officials with a need for such information.

These minimization requirements complement and supplement traditional standards under the Fourth Amendment to the United States Constitution.[8] If the surveillance is pursuant to a court order or warrant, the United States Foreign Intelligence Surveillance Court (FISA Court or FISC) must find that the proposed surveillance meets the statutory minimization requirements for information pertaining to U.S. persons,[9] but intelligence agencies have broad discretion to spy without a court order or warrant, and so they must ensure compliance with those statutory minimization requirements under Section 702 of FISA.[10]

When unmasking occurs, it must be based upon a valid reason, and only for the person who requests the unmasking; intelligence reports do not get re-disseminated with the name or statements of the U.S. person unmasked.[3] NSA rules say that unmasking must be "necessary to understand foreign intelligence information or assess its importance", or be done with the consent of the U.S. person who would be unmasked, or be pursuant to a finding that the U.S. person is a foreign agent or terrorist, or the unmasked information includes evidence about a crime.[4]

Instances

Unmasking is not rare or even unusual. For example, according to a report from the Office of the Director of National Intelligence (ODNI), "The number of U.S. person identities that NSA released during calendar year 2015 in response to specific requests to unmask an identity was 2,232."[11] That number (which does not include other U.S. intelligence agencies, nor includes unmasked statements by U.S. persons whose names remain masked, and also does not include U.S. person information that the NSA deemed appropriate to unmask for dissemination in the first instance) went down to 1,934 in 2016.[11][12]

Unmasking members of Congress

Members of Congress have in the past expressed concern that U.S. intelligence agencies have disseminated communications of nontarget U.S. persons (with or without naming them), including when those U.S. persons were members of Congress themselves. For example, in 2015 during the Obama administration, Representative Pete Hoekstra tweeted: "WSJ report that NSA spied on Congress and Israel communications very disturbing. Actually outrageous. Maybe unprecedented abuse of power."[13] Likewise, in 2009, reports emerged that Representative Jane Harman had been involved in a similar incident, also involving Israel, during the George W. Bush administration.[14][15]

Current practice is reportedly for the eight bipartisan leaders in Congress to receive alerts that members of Congress or their aides have been unmasked. Such an alert is known as a "Gates Notification" after former Defense Secretary and CIA Director Robert Gates, and they happen as often as once a month.[16][17]

Unmasking aides to Donald Trump

In February 2017 during the Trump administration, Michael Flynn resigned his position as National Security Advisor, reportedly (by who?) after communications he had with Russian Ambassador Sergey Kislyak were unmasked and leaked to the press. Flynn lost his job because the leaks made clear to White House officials that he had misled them about his discussion with Kislyak in December 2016.[18]

Former National Security Advisor Susan Rice made requests to unmask members of the Trump campaign and transition,[19] which she has said were apolitical requests, and only to provide context for intelligence reports.[20] Rice was not the person who unmasked Flynn's conversation with Kislyak, according to sources who spoke to the Wall Street Journal.[21] Rice has said that she did unmask Trump aides at a December 2016 meeting at Trump Tower, unrelated to Kislyak or Russia.[22] Fox News has reported that former ambassador to the United Nations Samantha Power requested 260 unmaskings during 2016, mostly toward the end of the Obama administration,[23] which Power has denied,[24] saying that other people requested some of the unmaskings in her name.[25]

The United States House Permanent Select Committee on Intelligence is continuing to probe whether improper unmasking occurred during the Obama administration.[26] The chair of that committee, Republican Devin Nunes, has said that top political aides of President Obama made hundreds of unmasking requests during the 2016 presidential race without specifically justifying why the information was needed.[27] The top Democrat on the committee, Adam Schiff, says the investigation into unmasking is meant to divert attention from probes of Russian interference in the 2016 United States elections.[28]

See also

References

  1. ↑ Dilanian, Ken. “What Is Unmasking, and Did Susan Rice Do Anything Wrong?”, NBC News (April 4, 2017).
  2. 1 2 Korte, Greg. "What is 'unmasking?' How intelligence agencies treat U.S. citizens", USA Today (April 4, 2017).
  3. 1 2 Morell, Michael. “Why Unmasking is Critical to National Security”, The Cipher Brief (September 24, 2017).
  4. 1 2 Banks, William. "Next Generation Foreign Intelligence Surveillance Law: Renewing 702", University of Richmond Law Review, Vol. 51, p. 697 (2017).
  5. ↑ Watkins, Eli. "'Unmasking,' FISA and other terms to help you understand the wiretapping story", CNN (March 23, 2017).
  6. ↑ Corn, Geoffrey et al. Aspen Student Treatise for National Security Law: Principles and Policy, p. 192 (Wolters Kluwer Law & Business, 2015).
  7. ↑ United States v. Rosen, 447 F.Supp.2d 538 (2006).
  8. ↑ Renan, Daphna. "The FISC's Stealth Administrative Law", Global Intelligence Oversight: Governing Security in the Twenty-First Century, p. 128 (Zachary K. Goldman and Samuel J. Rascoff, eds., Oxford University Press, 2016).
  9. ↑ 50 U.S.C. § 1801(h) Minimization procedures definition
  10. ↑ 50 U.S.C. § 1881a, Procedures for targeting certain persons outside the United States other than United States persons.
  11. 1 2 Office of the Director of National Intelligence (ODNI), "STATISTICAL TRANSPARENCY REPORT REGARDING USE OF NATIONAL SECURITY AUTHORITIES FOR CALENDAR YEAR 2016, p. 13 (April 2017). This 2017 report noted a mistake in a previous report in 2016: “Statistical Transparency Report Regarding Use of National Security Authorities”, Office of the Director of National Intelligence (ODNI) (April 30, 2016) quoted in Hennessey, Susan and Doss, April. “What Intelligence Officials Really Mean When they Talk About ‘Unmasking’”, Lawfare (blog) (April 7, 2017).
  12. ↑ Hosenball, Mark. "NSA Reportedly Collected Americans’ Phone Records Even After Law Change", Huffington Post (May 3, 2017).
  13. ↑ Folk, Moe and Apostel, Shawn. Establishing and Evaluating Digital Ethos and Online Credibility, p. 73 (IGI Global, 2016). The tweet was referring to this news report: Entous, Adam and Yadron, Danny. “U.S. Spy Net on Israel Snares Congress: NSA’s targeting of Israeli leaders swept up the content of private conversations with U.S. lawmakers”, Wall Street Journal (December 29, 2015).
  14. ↑ Thrush, Glenn and Bresnahan, John. “Harman calls out NSA”, Politico (April 22, 2009).
  15. ↑ Goldman, Andrew. “Jane Harman Can Take a Punch”, New York Times Magazine (September 7, 2012).
  16. ↑ Hensch, Mark. "US spy agencies routinely unmask lawmakers: report", The Hill (April 6, 2017).
  17. ↑ Carter, Sara. "US spy agencies intercept and unmask congressional figures as often as once a month", Circa News (April 5, 2017).
  18. ↑ Crowley, Michael. “Susan Rice becomes the target of conservative attacks over Flynn unmasking”, Politico (April 4, 2017): "Flynn’s name was reportedly among those unmasked, and later leaked to the media, revealing contacts he had with the Russian ambassador in December, which cost him his job after it became clear he had misrepresented them to fellow White House officials."
  19. ↑ Lake, Eli (April 3, 2017). "Susan Rice Sought Names of Trump Associates in Intel". Bloomberg View. Retrieved April 5, 2017.
  20. ↑ Shabad, Rebecca (4 April 2017). "Susan Rice says unmasking of names wasn't for political purposes". CBS News.
  21. ↑ Sonne, Paul et al. “House Intel Panel Wants Susan Rice to Testify in Russia Probe”, Wall Street Journal (April 4, 2017): "The Republican official and others said Ms. Rice wasn't the administration official who instigated Mr. Flynn’s unmasking."
  22. ↑ Williams, Katie. “Rice told investigators she unmasked Trump officials in undisclosed UAE meeting: report”, The Hill (September 13, 2017).
  23. ↑ Perez, Chris. "Samantha Power allegedly tried to ‘unmask’ Americans on a daily basis", New York Post (September 20, 2017).
  24. ↑ "Samantha Power grilled on Capitol Hill over 'unmasking'", Fox News (October 13, 2017).
  25. ↑ Scarborough, Rowan. "Nunes’ investigating digs up trove of Democrat connections to Russia dossier", Washington Times (October 29, 2017): “she told the committee that other people did some of the unmaskings in her name.”
  26. ↑ Williams, Katie. “Former Obama aide Ben Rhodes questioned by House intel leaders”, The Hill (October 25, 2017).
  27. ↑ Solomon, John. "Intelligence chairman accuses Obama aides of hundreds of unmasking requests", The Hill (July 27, 2017).
  28. ↑ House, Billy and Strohm, Chris. "Ex-intel official: Trump dossier didn’t spark surveillance", Bloomberg News via Mercury News (October 27, 2017).
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