Unmasking by U.S. intelligence agencies typically occurs after the United States conducts eavesdropping or other intelligence gathering aimed at foreigners or foreign agents, and the name of a U.S. citizen or entity is incidentally collected. Intelligence reports are then disseminated within the U.S. government, with such names masked to protect those U.S. citizens from invasion of privacy. The names can subsequently be unmasked upon request by authorized U.S. government officials under certain circumstances. Unmaskings occur thousands of times each year, totaling 10,012 in 2019.
Jargon When an intelligence agency spies on foreign citizens or agents, and information about innocent domestic citizens is uncovered even though they are not targets of investigation, that is called "incidental collection". If the intelligence agency is operating in a manner designed to protect privacy rights, then it normally addresses incidental collection by using a process called "minimization" which includes replacing names of innocent domestic citizens with designations like "U.S. Person One," "U.S. Person Two," et cetera, before the intelligence reports will be distributed within the government. There are essentially two types of incidental collection. The first type is when legitimate foreign intelligence targets are speaking about a domestic person. The second type is when a legitimate foreign intelligence target is speaking with a domestic person. If the domestic person information is deemed not to have intelligence value then it is purged from government databases, but otherwise can be disseminated with minimization; in the first type of incidental collection the domestic names will be redacted, and in the second type of incidental collection everything the domestic person says will be redacted. As former CIA official Michael Morrell has put it, "In the second type of incidental collection, where the U.S. person is actually part of the conversation, typically nothing that U.S. person says can be disseminated."
United States law In the United States, the various intelligence agencies such as the CIA, FBI and National Counterterrorism Center have their own distinctive minimization procedures and unmasking procedures, which were partially declassified in August 2016. At the National Security Agency (NSA), about 20 people have authority to approve unmasking requests, according to NSA Director Michael S. Rogers. Former FBI Director James Comey said that his agency necessarily has many more than 20 people with unmasking authority, which he attributed to the fact that the scope of the FBI's mission includes domestic affairs. The U.S. Government's minimization procedures stem primarily from the Foreign Intelligence Surveillance Act. Courts interpreting that statute have explained the purposes of minimization:
[M]inimization at the acquisition stage is designed to insure that the communications of nontarget U.S. persons who happen to be using a FISA target's telephone, or who happen to converse with the target about non-foreign intelligence information, are not improperly disseminated. Similarly, minimization at the retention stage is intended to ensure that information acquired, which is not necessary for obtaining, producing, or disseminating foreign intelligence information, be destroyed where feasible. Finally, the dissemination of foreign intelligence information needed for an approved purpose . . . should be restricted to those officials with a need for such information. These minimization requirements complement and supplement traditional standards under the Fourth Amendment to the United States Constitution. If the surveillance is pursuant to a court order or warrant, the United States Foreign Intelligence Surveillance Court (FISA Court or FISC) must find that the proposed surveillance meets the statutory minimization requirements for information pertaining to U.S. persons, but intelligence agencies have broad discretion to spy without a court order or warrant, and so they must ensure compliance with those statutory minimization requirements under Section 702 of FISA. When unmasking occurs, it must be based upon a valid reason, and only for the person who requests the unmasking; intelligence reports do not get re-disseminated with the name or statements of the U.S. person unmasked. NSA rules say that unmasking must be "necessary to understand foreign intelligence information or assess its importance", or be done with the consent of the U.S. person who would be unmasked, or be pursuant to a finding that the U.S. person is a foreign agent or terrorist, or the unmasked information includes evidence about a crime.
Instances Unmasking is common. According to the Office of the Director of National Intelligence (ODNI), 9,217 unmasking requests were fulfilled in 2016, 9,529 in 2017, 16,721 in 2018 and 10,012 in 2019.
Unmasking members of Congress Members of Congress have in the past expressed concern that U.S. intelligence agencies have disseminated communications of nontarget U.S. persons (with or without naming them), including when those U.S. persons were members of Congress themselves. For example, in 2015 during the Obama administration, Representative Pete Hoekstra tweeted: "WSJ report that NSA spied on Congress and Israel communications very disturbing. Actually outrageous. Maybe unprecedented abuse of power." Likewise, in 2009, reports emerged that Representative Jane Harman had been involved in a similar incident, also involving Israel, during the George W. Bush administration. Current practice is reportedly for the eight bipartisan leaders in Congress to receive alerts that members of Congress or their aides have been unmasked. Such an alert is known as a "Gates Notification" after former Defense Secretary and CIA Director Robert Gates, and they happen as often as once a month.
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