Data on the unmasking of Americans in foreign intelligence reports for four months surrounding Election Day of 2016 is missing in several reports released by the Director of National Intelligence (DNI).
National Security Agency data collection under Section 702 of the Foreign Intelligence Surveillance Act (FISA) is prohibited from targeting Americans. If it picks up information on Americans, the agency is supposed to mask their identities with generic identifiers such as “U.S. person 1.” Many senior government officials have the authority to request such identities unmasked, such as when it’s necessary to understand the intelligence.
The DNI releases annual reports that include overall statistics on how many personal identities have been unmasked each year.
The reports normally cover a calendar year, but for 2016, the DNI chose to report it from September 2015 to August 2016. The data for September to December of 2016 is missing.
The Russia investigation failed to establish that any such collusion occurred.
The DNI started to report the unmasking figures in 2016 in response to recommendations of the Privacy and Civil Liberties Oversight Board, a watchdog group set up by Congress in 2004.
In 2016, the number dropped to 1,934. It also specified that the reports have only been including unmaskings of names and titles of Americans. Unmaskings of other identifying information, such as email addresses, telephone numbers, and names of American companies, weren’t included.
The report said the figures that include any identifying information were previously disclosed in a separate FISA report provided only to the DNI, the secret FISA court, the attorney general, and select members of Congress. This separate report is prepared annually for the period of September to August.
Spying under FISA has faced heightened scrutiny in recent years after several investigations revealed that the FBI in 2016 and 2017 applied for a FISA warrant to spy on former Trump campaign aide Carter Page using false and unsubstantiated allegations fed to the bureau by operatives paid, through intermediaries, by the Democratic National Committee and the campaign of Trump’s opponent, former Secretary of State Hillary Clinton.
Even as the FBI garnered more and more information undermining the allegations, it withheld most of it from the FISA court and kept applying for renewals of the warrant, resulting in illegal surveillance.
The Justice Department’s Inspector General found hundreds of errors in a sample of 29 other FISA warrant applications, but the FBI was able to explain most of them as paperwork issues that didn’t affect the validity of the warrants. In Page’s case, however, the bureau acknowledged that at least its last two renewals in 2017 were invalid.
FISA authorizes several avenues to intelligence collection. Section 702 of Title VII of the law allows warrantless collection of electronic communications, such as phone calls and emails, of people outside the United States who aren’t Americans. Title I allows electronic surveillance of Americans and people inside the United States, as long as the FISA court agrees there’s a probable cause that the target is a foreign power or an agent of a foreign power. Page was targeted under Title I.