FISA Transparency Reports Skip Unmasking Data for Crucial Time Around 2016 Election

FISA Transparency Reports Skip Unmasking Data for Crucial Time Around 2016 Election
Sign outside the National Security Administration (NSA) campus in Fort Meade, Md., on June 6, 2013. (Patrick Semansky/AP Photo)
Petr Svab

Data on the unmasking of Americans in foreign intelligence reports for four months surrounding Election Day of 2016 is missing in several reports released by the Director of National Intelligence (DNI).

National Security Agency data collection under Section 702 of the Foreign Intelligence Surveillance Act (FISA) is prohibited from targeting Americans. If it picks up information on Americans, the agency is supposed to mask their identities with generic identifiers such as “U.S. person 1.” Many senior government officials have the authority to request such identities unmasked, such as when it’s necessary to understand the intelligence.

The DNI releases annual reports that include overall statistics on how many personal identities have been unmasked each year.

The reports normally cover a calendar year, but for 2016, the DNI chose to report it from September 2015 to August 2016. The data for September to December of 2016 is missing.

The missing period is important because it was the time when the FBI ramped up its spying on Trump campaign aides and associates as part of an investigation into alleged collusion between the campaign and Russia to sway the election. Also, between Nov. 8, 2016, and Jan. 31, 2017, senior Obama administration officials made 49 unmasking requests that revealed the identity of Lt. Gen. Michael Flynn, then-incoming national security adviser to President-elect Donald Trump, the DNI told Congress in May.

The Russia investigation failed to establish that any such collusion occurred.

The DNI started to report the unmasking figures in 2016 in response to recommendations of the Privacy and Civil Liberties Oversight Board, a watchdog group set up by Congress in 2004.

For 2015, the DNI reported that the NSA released 654 U.S. person identities in response to unmasking requests (pdf). But the year after, the DNI acknowledged that this figure was actually the number of requests, which can contain multiple identities each. The number of identities was actually 2,232 (pdf).

In 2016, the number dropped to 1,934. It also specified that the reports have only been including unmaskings of names and titles of Americans. Unmaskings of other identifying information, such as email addresses, telephone numbers, and names of American companies, weren’t included.

For 2017, the report started to include unmaskings of any identifying information, pushing the number up to 9,529. The report also included the figure for 2016—9,217—but only for the period of September 2015 to August 2016 (pdf).

The report said the figures that include any identifying information were previously disclosed in a separate FISA report provided only to the DNI, the secret FISA court, the attorney general, and select members of Congress. This separate report is prepared annually for the period of September to August.

It’s not clear why the DNI report didn’t include the complete 2016 numbers. Neither of its two subsequent reports for 2018 and 2019 filled the gap (pdf, pdf). The Epoch Times requested the data for the last four months of 2016 from the DNI and was referred to the NSA, which declined to comment beyond the DNI report.

Spying under FISA has faced heightened scrutiny in recent years after several investigations revealed that the FBI in 2016 and 2017 applied for a FISA warrant to spy on former Trump campaign aide Carter Page using false and unsubstantiated allegations fed to the bureau by operatives paid, through intermediaries, by the Democratic National Committee and the campaign of Trump’s opponent, former Secretary of State Hillary Clinton.

Even as the FBI garnered more and more information undermining the allegations, it withheld most of it from the FISA court and kept applying for renewals of the warrant, resulting in illegal surveillance.

The spying operation and the Trump–Russia probe it was part of is under investigation by U.S. Attorney John Durham. Former FBI attorney Kevin Clinesmith pleaded guilty in August to altering a document that outlined Page’s previous cooperation with the CIA.

The Justice Department’s Inspector General found hundreds of errors in a sample of 29 other FISA warrant applications, but the FBI was able to explain most of them as paperwork issues that didn’t affect the validity of the warrants. In Page’s case, however, the bureau acknowledged that at least its last two renewals in 2017 were invalid.

The FBI and the Department of Justice have been adopting a series of reforms of the FISA process to mitigate its future abuse.

FISA authorizes several avenues to intelligence collection. Section 702 of Title VII of the law allows warrantless collection of electronic communications, such as phone calls and emails, of people outside the United States who aren’t Americans. Title I allows electronic surveillance of Americans and people inside the United States, as long as the FISA court agrees there’s a probable cause that the target is a foreign power or an agent of a foreign power. Page was targeted under Title I.

Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.
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