President Trump, on the eve of a House vote to renew the intelligence community’s authority to conduct restricted domestic surveillance, signed a memorandum ordering intelligence agencies to create new procedures to protect average Americans whose names happen to show up in classified agency transcripts of monitored phone conversations.
The Director of National Intelligence, Trump's memo directed, “shall, within 30 days of the date of this memorandum, issue and release publicly a policy requiring that each element of the Intelligence Community develop and maintain procedures for responding to requests from federal, state, local, tribal, or territorial government officials for non-public identity information concerning known unconsenting United States persons that was originally omitted from disseminated intelligence reports.”
Trump has long accused the Obama administration of abusing the privilege that some national security officials enjoy to request—for policymaking purposes—the names of Americans redacted from intelligence documents based on intercepted phone conversations with foreigners. He said Obama had bugged Trump Tower in New York City during the presidential campaign.
On Thursday morning, Trump revived the issue, tweeting that the controversial Foreign Intelligence Surveillance Act now being reauthorized “may have been used….to so badly surveil and abuse the Trump Campaign by the previous administration and others?”
He then tweeted, “I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”
The House then voted 256-164 to reauthorize section 702 with new surveillance authority, rejecting an amendment to promote more privacy protections.
Asked for clarification by Government Executive, a spokesman for the Office of National Intelligence referred to an ODNI report on the topic released in November. Last June, National Intelligence Director Dan Coats told the Senate Intelligence Committee that ODNI’s Office of Civil Liberties, Privacy and Transparency would be reviewing the procedures for protecting Americans’ identities in intelligence documents. The FBI, CIA and National Security Agency each conducted a review of their procedures under FISA and prepared reports for public release in November. “The reports collectively document the rigorous and multi-layered framework—including a robust oversight regime and a strong compliance record—that safeguards the privacy of U.S. person information in FISA disseminations,” ODNI said.
“In general, for non-public information concerning an unconsenting U.S. person, agencies may only include the identity of the U.S. person if it itself constitutes foreign intelligence, is necessary for the recipient to understand the foreign intelligence being transmitted, or is evidence of a crime.”
NSA, as a matter of policy, ODNI continued, “in many cases requires that U.S. person identities be masked, with the identity provided only after a request by an authorized recipient and approval by a senior official.”
On Thursday, in response to Trump’s memo, Coats sent the entire intelligence community new guidance on unmasking. It said that only IC element heads or their designees may approve requests for U.S. person identity information; required documentation for names or titles of individuals who will receive the information; required a fact-based justification for each request; and required intel community General Counsel concurrence for requests that related to presidential transition team members before those requests are approved by IC elements.