Is there something to all the FISA 702 unmasking requests?

Last week, the DNI issued its Statistical Transparency Report Regarding Use of National Security Authorities in 2016. Since then, concerns have been raised about some of the data contained in the report, most notably the numbers relating to the "unmasking" of U.S. person identities under 702. 

A quick refresher -- Section 702 of FISA authorizes the targeting of foreigners outside the United States who use American-provided email services (downstream collection) or whose communications transit American communication networks (upstream collection). If a U.S. person communicates with a foreign target, their communication is "incidentally" collected as part of the surveillance. Intelligence analysts write reports based upon 702 surveillance and when they do, FISA tells them to hide or "mask" the identities of U.S. persons in those reports unless the U.S. person identity is necessary to understand the foreign intelligence (or evidence of a crime). 

A U.S. person's identity can be unmasked, generally speaking, at two points -- (1) when the analyst prepares the report or (2) after the report has been issued and a recipient of the report within the IC (who has authority to) requests unmasking. The unmasked U.S. person identity is shared only with the requester; it is not circulated widely to the IC. If this sounds familiar it's because Susan Rice, Obama's National Security Advisor, caused a stir earlier this year when it was revealed that she requested the unmasking of one -- or more --  Trump associates in the days leading up to the end of the Obama administration. 

In 2016, 3,914 NSA reports contained U.S. person identities. Of those reports, 2,964 contained masked U.S. person identities and 1,200 contained unmasked identities. Of the 2,964 reports containing masked identities, 1,934 identities were subsequently unmasked upon request. In 2015, those numbers were roughly similar -- 4,290 reports contained U.S. person identities. Of those reports, 3,168 contained masked identities, 1,122 contained unmasked, and 2,232 identities were subsequently unmasked upon request (this number was originally reported to be only 654).  

Some believe the large numbers of unmasking requests are a sign of something nefarious by the Obama intelligence community and question whether it's proof that Obama used surveillance authorities as a political tool against his Republican opponents. Spurred by the DNI's report, Senator Rand Paul made public last week a letter he sent to the White House in April asking whether he and other Members of Congress were incidentally collected and unmasked by the Obama IC. 

It's understandable that the timing of Section 702's expiration at the end of the year and last week's statistics on U.S. person unmasking under that section would get wrapped up in the ongoing controversy surrounding Russian election interference, allegations of collusion by Trump associates, allegations of surveillance for political gamesmanship by Obama officials, and the proliferation of leaks of classified surveillance. But the 702 unmasking data and concerns with programs operated under that provision are oranges, not apples. The alleged surveillance at issue in the controversy surrounding Michael Flynn, Carter Page and possibly other Trump associates was most likely not conducted under 702. Any conversations between General Flynn and Russian Ambassador Kislyak would more likely have been incidentally collected under Title I of FISA (one of the probable cause authorities) assuming Kislyak was inside the United States at the time of the surveillance. And Carter Page, being a U.S. citizen, would have been subject to FISA's probable cause requirements as well.

As for Senator Paul, it's possible his communications were incidentally collected if he was in contact with a person under surveillance. Frankly, that's to be expected by Senators and Members of Congress who communicate with foreign diplomats or leaders. That's not to say that the unmasking of a Senator or Member of Congress is always necessary or appropriate. But their status as an elected official also doesn't make unmasking their identities per se inappropriate either. And the fact that elected officials may be routinely swept up in surveillance due to who they communicate with doesn't mean that the unmasking requests by Susan Rice (or other high-ranking political appointees) of Trump campaign officials doesn't warrant scrutiny, regardless of what section of FISA was utilized.

I don't know what accounts for the high number of 702 unmasking requests. Perhaps the NSA is overly conservative in its masking practices (it is supposed to be the default rule, after all). Perhaps IC members play fast and loose with their unmasking requests. Or maybe this is just how the system works. Regardless, it's probably not a bad idea for Congress to ask why such large percentages of masked U.S. person identities are subsequently unmasked when they were initially masked. The explanation may put concerns to rest or reveal the need for a change in policy or practice.





Caroline Lynch