Recently declassified documents reveal that the National Security Agency (NSA) regularly violated privacy protections supposed to protect Americans incidentally caught up in surveillance of foreign targets, drawing a stinging rebuke from the nation’s intelligence court. This resulted in the improper unmasking of the identities of U.S. citizens, some of whom weren’t in direct contact with the foreign targets of the surveillance, during the final years of the Obama administration.
First reported by Circa, the documents show that over 5 percent, or one-in-20 searches of the NSA’s Section 702 database — which gathers internet and phone data but isn’t supposed to target Americans — failed to comply with the standards established by the Obama administration in 2011. The so-called minimization rules require NSA agents to "mask" the identity of Americans who conversed with or were mentioned by the foreign targets of the agency’s surveillance.
The Foreign Intelligence Surveillance Court (FISA) said the violations, which were only disclosed by the Obama administration in October 2016, pose "a very serious Fourth Amendment issue" and blamed an “institutional lack of candor” on the NSA’s part for its failure to inform the court about the extent of the violations sooner.
Civil libertarians have also expressed outrage and the reports, with the ACLU’s legislative counsel noting a “shocking lack of oversight of these programs.” On April 28, 2017 — after the FISA court document was released — the NSA halted some collection of intelligence under Section 702 that were "about" surveillance targets and focus its efforts on direct communications directly involving foreign targets.
While the total number of violations has been redacted from the reports shown to Circa, for a sense of scale former intelligence chief James Clapper’s testimony before Congress on the matter he said that nearly 2,000 Americans were unmasked in 2016. Clapper’s colleague in the Obama administration, former national security adviser Susan Rice, declined to testify about reports that she unmasked the identities of people connected to Donald Trump’s campaign or transition team.
The authority to collect intelligence under Section 702 will be facing even more congressional scrutiny soon — it’s up for re-authorization at the end of the year and could be the target of reforms or a push to discontinue it altogether. Sen. Rand Paul (R-KY) has pushed to modify Section 702 in the past, and said on Fox News that the apparent violations of the unmasking process would represent "an enormous abuse of power."
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— Eric Revell
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