Compared to Obama Admin, Trump Administration Fervently Unmasking FISA Intercepts
In the last week, the acting Director of National Intelligence, Richard Grennel, gave the Justice Department a list of Obama administration officials who requested that ex-National Security Adviser Michael Flynn be unmasked—uncensoring the name of previously confidential identities of American citizens in National Security Agency (NSA) foreign intelligence reports. President Trump recently stated that those who unmasked Flynn "should go to jail."
Yet the Trump Administration is not opposed to unmasking and has increasingly used the process to reveal names. Based on transparency reports from the Office of the Director of National Intelligence, compared to the Obama administration, the number of U.S. persons unmasked in response to a request from a specific agency grew more than ten-fold from 2015 to 2016. From 2017 to 2018, that number almost doubled.
In 2015, only 654 people were unmasked in 1,122 reports. An estimated 40-50 of those were of Michael Flynn based on the recently released FOIA request.
Few numbers are available pre-2015 as it does not appear to be calculated in those annual reports.
A Wall Street Journal story from April of 2019 reported that the increase in unmasking requests came from cybersecurity incidents and attempts to identify victims. It does not indicate why those named weren’t being unmasked pre-2016.
Flynn resigned from the Trump administration under a possibility that he could be prosecuted under the Logan Act—a law from the 1800s that forbids unauthorized citizens from negotiating with a foreign government—for discussions with the Russian ambassador. Flynn was eventually pleaded guilty to lying to the FBI.
The intercepts, those that fall under Section 702 of the Foreign Intelligence Surveillance Act, by the FBI as part of investigations not related to a national security concern are sometimes referred to as “backdoor searches” since they allow a search without a warrant under the Fourth amendment. They are criticized for potentially abusing civil liberties, but they also help fill in the gap between foreign and domestic intelligence that led to intelligence failures like September 11th, according to Adam Klein, chairman of Privacy and Civil Liberties Oversight Board.
Other FISA Search Statistics
While 702 unmasking requests have increased, that’s not necessarily a common trend across all FISA requests. Pen Register and Trap and Trace Orders (PR/TT)—dialing, routing, or addressing information—have declined substantially since 2016. National Security Letters (NSLs)—requests for detailed information like financial records—and requests for information under NSLs have been relatively consistent. Requests for Call Detail Records (CDRs)—call event metadata—have tripled since 2016, but there’s little detail on how common the practice was before that.
