The Corner

Law & the Courts

Trump’s Fair Gripe About Obama-Era ‘Unmasking and Surveillance’

From the Thursday edition of the Morning Jolt:

Actually, There Was Extensive Improper NSA Collection Under Obama

President Trump, on Twitter this morning: “The big story is the ‘unmasking and surveillance’ of people that took place during the Obama Administration.”

Trump has a fair complaint; his administration did come into office and learn of a National Security Agency program that was vacuuming up the personal information of law-abiding American citizens in violation of previous administration’s assurances and agreements.

The problems concerned the N.S.A. program’s “upstream” system, which collects emails and other internet messages entering or leaving the United States from the switches of network operators like AT&T. One thing that system did was collect messages that merely included identifying terms — like email addresses — for foreigners whom the agency is spying on, but are neither to nor from those targets. The agency called that “about” surveillance, because it gathered messages about its target.

For technical reasons, upstream collection is more likely to also capture some purely domestic emails than the program’s “downstream,” or “Prism,” system, which collects the contents of targeted foreigners’ accounts from providers like Gmail. As a result, the court had imposed a rule that analysts could not search for Americans’ information in the upstream repository.

But the study showed that when analysts searched for Americans’ information, they often failed to take steps to prevent the upstream repository from being queried, too — including 85 percent of a particular type of such searches. [The Foreign Intelligence Surveillance Court’s presiding judge, Rosemary] Collyer called that “a very serious Fourth Amendment issue” and criticized the N.S.A. for institutional “lack of candor” because it had not disclosed the problem earlier.

After the Trump administration ended the “about” collection in March and came back to the court, Judge Collyer authorized the revised program. She also lifted the ban on searching for Americans’ information in upstream messages collected in the future, eliminating the complexity that had led to the analysts’ compliance problem.

As Circa reported, this ties to the recent debate about “unmasking” and how often collected data is connected to an identified American citizen: “Since 2011, NSA’s minimization procedures have prohibited use of U.S.-person identifiers to query the results of upstream Internet collections under Section 702,” the unsealed court ruling declared. “The Oct. 26, 2016 notice informed the court that NSA analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had been previously disclosed to the Court.”

Also in the judge’s ruling was the recognition that for most of the program’s history, “contractors had access to raw FISA information on FBI storage systems,” violating previous agreements on minimizing the spread of this sort of information gathered from American citizens. Contractor access wasn’t restricted until April 2016. “The Court is concerned about the FBI’s apparent disregard of minimization rules and whether the FBI may be engaging in similar disclosures of raw Section 702 information that has not been reported.” Also in 2016, the CIA discovered problems in its “purge practices” designed to prevent the improper retention of metadata, but could not definitively say how long those problems had been going on.

Yes, this revelation of “a very serious Fourth Amendment issue” was indeed covered in detail in the New York Times… on page A21 on May 12. Is it that government misbehavior that doesn’t tie back to Donald Trump just isn’t a big deal anymore?

Separately, the government admitted that in 2016, an FBI agent searched for and read private email messages involving an American suspect that the National Security Agency had collected via its warrantless surveillance program. No matter how rotten that particular suspect was, some Americans will prefer a system where the FBI has to get a warrant to read your e-mails.

The Trump administration, defenders of Americans’ privacy and the Fourth Amendment! Who saw that coming?