2013 Authority Expansion Means A Whole Lot Of People On Capitol Hill Can View Unminimized NSA Collections

from the little-bit-of-comms-dirt-on-everyone dept

The unmasking rules House Intelligence Chair Devin Nunes has been (somewhat disingenuously) complaining about have been around for a few years now. Normally, US persons' identities are minimized before government officials can view intel gathered by the NSA. But in cases where it might be necessary to provide context, the White House can ask for the identities to be unmasked.

This has turned into a mini-firestorm on Capitol Hill, with Nunes striking most of the matches. The problem is Nunes should be aware of these rules, as he's in charge of the intelligence oversight committee. He apparently doesn't, or at least wasn't aware how many people can actually ask for US persons to be unmasked.

The loosening of these restrictions traces back to Obama's second term, as John Solomon of The Hill points out.

Procedures issued by Director of National Intelligence James Clapper in March 2013 formally supplanted a 1992 set of rules that made the dissemination of names of intercepted lawmakers or congressional aides an act of last resort.

The new standard allowed for a lawmaker’s or staffer’s name to be unmasked if “an executive branch recipient of intelligence” believed that learning “the identity of the Member of Congress or the Congressional staff is necessary to understand and assess the associated intelligence and further a lawful activity of the recipient agency,” according to a memo released earlier this month by the DNI's office with little public fanfare.

The unmasking standard has become less of a "standard" as the years have passed, according to this report by The Hill. All the way back in the mid-90's, the rules allowed only one person to sign off on unmasking: the head of the CIA. And this could only be done as a last resort -- if context for the intercepted communications could not be "satisfied in any other fashion."

Since then, there's been nothing but slippage. Now it's not only legislators that can request unmasking, but also their staffers as well, meaning there are potentially hundreds of people with the power to view unminimized NSA intel. (This doesn't even include those on the downstream side of this surveillance: at least 16 federal agencies now have access to unminimized intel.)

Now that the Director of National Intelligence has replaced the CIA Director at the top of the unmasking organizational chart -- something that happened in 2005 -- the rules have been relaxing continuously. In fact, the latest version, which does away with the "as a last resort language," was written into force by James Clapper's office, which saw it as nothing more than a codification of practices the intel community was already engaged in.

(DNI Counsel Bob) Litt said by the time he drafted the 2013 rules, he did not believe he was changing policy, because the procedures had been evolving for years.

“We believed we were formalizing simply what we had inherited,” he explained.

It hasn't slid so far that the exception has become the rule, but unmaskings are becoming far more routine. What used to be limited to a handful of times a year has now become a monthly occurrence. Hence the outrage from members of Congress, which should be viewed a bit skeptically, given they also have the power to perform unmaskings and their outrage tends to adhere to party lines.

The Trump administration has signed off on the 2013 rule change, indicating it feels there's nothing wrong with the status quo. That makes Devin Nunes' demands for answers that much more suspect, as he seems to be motivated more by the fact the rule change resulted in the ousting of short-lived National Security Advisor Mike Flynn (and assisting with the ongoing investigations into the administration's ties to Russia) than any general sense of Constitutional wrongness.

This is a problem. Most requests for unmasking will eventually route through the Director of National Intelligence, but the bar has been lowered, both in terms of when requests can be made, but also by who. Most of the attention is being paid to the unmasking of communications between government officials, but it's also normal, everyday Americans who are being subjected to lower privacy expectations as time goes on. As we head towards the renewal process for Section 702 collections, this is one of the areas Congress should spend some time discussing seriously. If nothing else, it gives lawmakers an opportunity to roll back some of the mission creep.

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Filed Under: devin nunes, james clapper, minimization, nsa, surveillance, unmasking