A news release posted by the Office of the Director of National Intelligence (ODNI) on May 2 linked to the ODNI’s annual “Statistical Transparency Report regarding the use of national security authorities for calendar year 2016.” The Circa News organization (owned by Sinclair Broadcast Group) analyzed the data in the report and two days after it was released broke the story that the Obama administration distributed thousands of intelligence reports with the unredacted names of U.S. residents during the 2016 election.
In the interest of maintaining privacy, the government often redacts, or removes, private or sensitive information from reports prior to releasing them for publication.
Circa News noted in its report:
During his final year in office, President Obama’s team significantly expanded efforts to search National Security Agency intercepts for information about Americans, distributing thousands of intelligence reports across government with the unredacted names of U.S. residents during the midst of a divisive 2016 presidential election.
Extracting data from the ODNI report, Circa reported that government officials conducted 30,355 searches in 2016 seeking information about Americans in NSA intercept metadata. This metadata includes telephone numbers and e-mail addresses. These searches amounted to a 27.5 percent increase over the prior year and more than triple the 9,500 such searches that occurred in 2013, the first year that records of the data was kept.
In 2016, government analysts reviewed the actual contents of NSA-intercepted calls and emails for 5,288 Americans, an increase of 13 percent over the prior year and a huge increase over the 198 names searched in 2013.
The NSA produced 3,134 intelligence reports with unredacted names of U.S. residents based on the searches. These reports were distributed across government agencies in 2016, and another 3,354 reports were distributed in 2015. In about half of these reports, U.S. identities were unredacted in the original reports, while in the other half they were restored and included afterwards upon special requests from Obama administration officials.
One of the more significant factors revealed was that among those whose names were made available in the reports released in 2016 or early 2017 were campaign or transition associates of President Trump and members of Congress and their staffers. Circa cited sources with direct knowledge of this information.
Around 20 U.S. officials have the power to unmask a previously redacted name — a practice that was once considered a rare act.
The justification to do so need only be that “the identity of the United States person is necessary to understand foreign intelligence information or assess its importance,” according to a 2011 document related to Obama’s easing of intelligence rules.
“As a community, we look for new ways to enhance transparency,” the May 2 ODNI news release quoted Alex Joel, who leads ODNI’s Office of Civil Liberties, Privacy, and Transparency. “Our goal is to provide relevant information, distilled into an accessible format. This year’s report leans forward in that direction, providing significant information beyond what’s statutorily required, and reflecting our concerted effort to enhance clarity.”
The introduction to ODNI’s “Statistical Transparency Report” for 2016 explained some of the legal regulations governing national security authorities under the Foreign Intelligence Surveillance Act (FISA). For example, it explained that “both FISA Title I and FISA Title III require a probable cause court order to target individuals within the United States regardless of U.S. person status.”
The ODNI report also indicates that strict rules, which we partially quoted previously, are at least theoretically in place for masking the identity of U.S. person who was under surveillance. However, “unmasking” may take place on an undefined “need to know” basis. It states:
Recipients of NSA’s classified reports, such as other Federal agencies, may request that NSA provide the true identity of a masked U.S. person referenced in an intelligence report. The requested identity information is released only if the requesting recipient has a legitimate “need to know” the identity of the U.S. person and has the appropriate security clearances, and if the dissemination of the U.S. person’s identity would be consistent with NSA’s minimization procedures (e.g., the identity is necessary to understand foreign intelligence information or assess its importance). Furthermore, per NSA policy, NSA is allowed to unmask the identity for the specific requesting recipient only where specific additional controls are in place to preclude its further dissemination and additional approval has been provided by a designated NSA official.
As noted earlier, the above rules indicate that “the need to know” involves only cases where the person’s “identity is necessary to understand foreign intelligence information or assess its importance.”
However, it is apparent from the report that this “need to know” privilege was extended rather loosely by the Obama administration and that the privacy of many U.S. citizens who were subjected to NSA surveillance was not respected.
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