I like background articles like this: Amid Trump Inquiry, a Primer on Surveillance Practices and Privacy
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By CHARLIE SAVAGEMARCH 24, 2017
WASHINGTON — The assertion by the Republican chairman of the House Intelligence Committee, Representative Devin Nunes, that he saw intelligence reports showing that government surveillance programs “incidentally” collected communications involving Trump transition team members between November and January, has further muddied an already murky imbroglio.
Mr. Nunes’s claim is part of a broader a tug of war over whether the public should focus on the F.B.I.’s criminal investigation into possible Trump campaign coordination with Russia in its meddling in the 2016 election or, instead, on Obama-era surveillance that ensnared Trump team members and the propriety of leaks regarding what it uncovered.
President Trump, under bipartisan fire for his apparently baseless insistence that President Barack Obama wiretapped his phones at Trump Tower in October, pronounced himself “somewhat” vindicated by Mr. Nunes’s assertion. And Fox News’s Sean Hannity, a staunch Trump supporter, broadcast a segment with Mr. Nunes labeled “Trump Surveillance Confirmed.”
The developments have heightened the importance of understanding several things about surveillance practices and terms.
What is “incidental” collection?
Sometimes American surveillance programs, while targeting foreigners or foreign agents for intelligence purposes, end up intercepting private information about Americans too.
Imagine, for example, that the American government is wiretapping Ivan the Russian. Usually, Ivan just talks to other Russians. But one day, he talks on the phone or exchanges emails with Joe the American. The government intercepts Joe’s words as an “incidental” byproduct of its targeting of Ivan; the government is not monitoring Joe’s conversations with anyone else. Complicating matters, “incidental collection” can also be information about an American the government gathers by intercepting a conversation between two foreigners who discuss the American, even though he is not a participant.
Is it surprising that the government incidentally collected information about Trump transition team members?
Not really. Federal Bureau of Investigation counterintelligence agents routinely try to monitor foreign diplomats from adversary nations, like the Russian ambassador, Sergey I. Kislyak. The Times has reported that this is how the government came to intercept a conversation between Michael T. Flynn, then-President-elect Trump’s top national security adviser, and Mr. Kislyak in December about sanctions against Russia.
Mr. Nunes said the intelligence reports he saw involving incidentally collected information about Trump transition team members were unrelated to Russia. But because of his global business dealings and because he was the president-elect, Mr. Trump and his team were very likely talking to, and being talked about by, many prominent foreigners around the world whose communications the National Security Agency might target for intelligence-gathering purposes.
What are the rules for using incidentally collected information about Americans?
The government puts “raw,” or not yet processed, emails and phone calls it intercepts into repositories that intelligence analysts then query in search of messages relevant to what they are working on. They can search the repositories using keywords or the names of people related to their investigation, including the names of Americans.
When writing surveillance-based reports for broader dissemination within the intelligence community, analysts are supposed to “minimize” any privacy intrusion into Americans. Generally, this requires them to “mask” any names and private information about Americans. For example, a report citing Ivan’s phone call with Joe might recount what Ivan said to “U.S. Person 1,” rather than using Joe’s name and remarks.
When might an American’s name be unmasked in a report?
Minimization rules make an exception to the masking requirement if the American’s words and identity are necessary to understand foreign intelligence. This exception would seem to cover keeping Mr. Flynn’s identity and words unmasked in disseminated materials about his conversation with Mr. Kislyak.
Much remains murky about the separate concerns Mr. Nunes expressed this week about intelligence reports that were unrelated to Russia and contained incidentally collected information about members of the Trump transition team. Mr. Nunes has suggested that he has concerns about unmasked names in them. But the top Democrat on the Intelligence Committee, Representative Adam B. Schiff, has said Mr. Nunes had clarified that they were masked in the reports and the problem was Mr. Nunes could still tell who they were.
Is incidental surveillance a new concern?
No. Long before the present controversies, the government’s handling of Americans’ private communications that its surveillance programs collect incidentally has been the subject of a major public policy dispute.
It’s called the “backdoor search loophole” when officials search raw repositories of surveillance information intending to pull out and read any incidentally collected private messages of an American — especially when those messages were gathered without a warrant in the first place. Notably, while most agencies may only perform such a search for intelligence purposes, the F.B.I. may sometimes do so for ordinary criminal investigations too.
There are two types of warrantless surveillance that incidentally gather Americans’ private communications. Under the FISA Amendments Act, the government, while operating on domestic soil, may target specific foreigners abroad without a warrant. Under Executive Order 12333, the government, while operating abroad, may vacuum up communications in bulk, without targeting anyone.
The FISA Amendments Act will expire at the end of 2017 unless Congress enacts new legislation extending it. Privacy advocates are hoping to force the government to say how often it intercepts an American’s message incidentally through that program, and to require the government to start getting warrants before using an American’s name to query the repository. To date, there has been less discussion of imposing a similar requirement for so-called 12333 surveillance.
Who else gets to see this raw surveillance?
In January, the Obama administration completed bureaucratic work on a change that had been set in motion by President George W. Bush more than eight years earlier. It permitted the N.S.A. to share access to certain streams of raw 12333 surveillance with the other 16 intelligence agencies. This permits the other agencies to search through that repository directly and apply minimization maskings themselves, rather than relying on N.S.A. analysts to spot anything relevant and disseminate it to them in intelligence reports.
What does that have to do with all this?
Some of Mr. Trump’s supporters, like Mr. Hannity, have pushed a theory that Mr. Obama’s move — which expanded the number of officials with access to raw 12333 intercepts — may be connected to leaks like the disclosure of Mr. Flynn’s call with the Russian ambassador.
One problem with this theory is that the call was apparently intercepted under FISA, not 12333, since it was between an American and another person on domestic soil. Several intelligence agencies, including the F.B.I., the N.S.A. and the C.I.A., were already permitted to share raw FISA information.
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