The Michael Flynn Unmasking Fight Is Another Chance for More Transparency About Secret Government Surveillance

“This “unmasking” is part of a very secretive process of deciding who gets to see the names of Americans on transcripts of intercepted foreign communications and raw intelligence. Thanks to an annual transparency report from the Office of the Director of National Intelligence, we know that this happens a lot. According to the latest transparency report, the National Security Agency (NSA) unmasked the names of 10,012 U.S. citizens or residents in 2019 in response to requests from another agency.”

“Americans deserve more transparency on how this unmasking process works—and a better explanation of why all these people keep requesting unmasking and what happens to that information. This may well be a “routine” process, as so many officials insist, but that doesn’t mean that we as citizens should accept the status quo. People insisted the Page warrants were part of a routine process, too, and it turned out that the routine itself was broken.”

Immigrants Have a Right to Privacy Too

“The Trump administration has started forcibly collecting DNA samples from immigrants in detention and sending that information to an FBI criminal database called the Combined DNA Index System (CODIS) for permanent storage. Officials say this is a crime-fighting move. In reality, it is mass surveillance.
In 2005, Congress passed the DNA Fingerprint Act, requiring genetic testing of anyone arrested for a federal crime, regardless of whether they’re eventually charged and convicted. The Supreme Court approved this gross invasion of individual privacy in Maryland v. King (2013), ruling 5–4 that the law did not violate constitutional protections against illegal searches and seizures because the original arrest had required probable cause.

The DNA Fingerprint Act gave the Department of Homeland Security (DHS) latitude to exempt noncitizens from being sampled. There’s a very good reason for that: The vast majority of these folks are detained not because they have committed serious crimes with actual victims but because a harsh Clinton-era enforcement law vastly increased detentions for nonviolent immigration-related offenses. The Obama administration used this latitude to exempt immigrants from DNA sampling unless they were charged with another crime or were awaiting deportation proceedings. DHS Secretary Janet Napolitano pointed out at the time that taking DNA from the 30,000 immigrants who were then detained would pose “severe organizational, resource and financial challenges”—not to mention distract from actual crime-fighting.

The detained population has grown larger still, yet the Trump administration is arguing that these logistical concerns are outdated because the collection of DNA samples has become easier and cheaper. Customs and Border Patrol has gone ahead and launched pilot programs at several immigration centers around the country. Government estimates suggest that once the program is fully implemented, such centers will be sending 748,000 DNA profiles to CODIS every year. That’s more than the entire state of New York has contributed in more than 20 years”

The FBI Will Be Audited To See How Frequently They Screw Up Other FISA Warrants

“”When the Justice Department’s Inspector General finds significant concerns regarding flawed surveillance applications concerning the president’s campaign advisors, it is clear that this regime lacks basic safeguards and is in need of serious reform. While the report found that there wasn’t an improper purpose or initiation of the investigation, it also found significant problems that are alarming from a civil liberties perspective. For instance, the litany of problems with the Carter Page surveillance applications demonstrates how the secrecy shrouding the government’s one-sided FISA approval process breeds abuse. The concerns the Inspector General identifies apply to intrusive investigations of others, including especially Muslims, and far better safeguards against abuse are necessary.

The system requires fundamental reforms, and Congress can start by providing defendants subjected to FISA surveillance the opportunity to review the government’s secret submissions. The FBI must also adopt higher standards for investigations involving constitutionally protected sensitive activities, such as political campaigns.””

National Security Surveillance Apologists Are Starting to See the Light

“Horowitz himself acknowledged Wednesday that this was the first time anybody in the Office of the Inspector General had delved into the contents of a specific FISA warrant application. When Sen. Marsha Blackburn (R–Tenn.) asked him how frequently he found mistakes in these warrant applications, he explained to her that his office had only in the past done “high-level” reviews of the process. None of us outside the FBI can say, with the information we have right now, how typical this behavior is. We do know that while the FISA court has approved nearly all surveillance warrants (99 percent of them), the court has inquired and received additional information or changes to the warrant applications about a quarter of the time.

The good news from Horowitz’s report is that the inspector general is not going to wait for either Congress or Attorney General William Barr to decide what to do in a highly politicized environment. The Office of the Inspector General will audit the FBI to determine how well the warrants against those 232 other Americans will withstand this sort of scrutiny.

Next year we’ll see how serious Sasse and Graham are about FISA reform. An extension of PATRIOT Act surveillance authorities was shoved into a stopgap spending bill passed (primarily by Democrats) in November. That extension expires in March. At that point, Congress will have to decide whether it really wants to reform how secret surveillance is used against Americans or if it just cares how it affects Donald Trump.”