When the name of a US citizen is incidentally collected by the US Intelligence Community as part of intelligence activities, the name in masked in intelligence reports to protect the person’s identity. And then later on, if there is a vital need for a US government official to know who the person is, the official can request that the name can be unmasked, but only if they can cite a valid reason to do so. This is all in accordance with the Foreign Intelligence Surveillance Act.

Now in recent years, Republicans have made multiple allegations that the Obama Administration abused the unmasking process. First of all, in 2017 Devin Nunes, then-chairman of the House Intelligence Committee, announced that he found evidence that the Obama Administration had potentially engaged in unmasking abuse by improperly unmasking the names of Trump transition team officials in intelligence reports unrelated to Russia. Nunes never substantiated these allegations though. And now, Republicans including President Trump are making new allegations of unmasking abuse, specifically that the Obama Administration improperly unmasked Trump’s then-foreign policy advisor Michael Flynn in intelligence reports in order to leak his interactions with Russian Ambassador Sergey Kislyak to the press. The Washington Post, however, reports that the transcript of Flynn’s conversation with Kislyak is from an FBI report and not an intelligence report, and that Flynn’s name was never masked in that report, let alone unmasked.

But my question is, in the entire time that the unmasking process has existed, has there ever been a confirmed case of unmasking abuse? Any instances of identified by inspector generals or other executive branch officials? Has anyone ever faced disciplinary or criminal consequences for such an act?

  • 9
    What is the definition of "unmasking abuse" that could be used in a court of law? Who is going to "confirm" that an unmasking request is "abuse"? To what end? The Republican's will accuse the Democrats of "abuse" until there is a Democratic white house and then the Democrats will return the favor. What rules of congress are violated with an unmask request? What criminal code violations are there for one? (hint: none; it's all sound bites and nothing more)
    – CGCampbell
    May 22, 2020 at 23:08

2 Answers 2


TLDR We really have no way of knowing with publicly available information.

Before I dig into the meat of this, I want to point out on the subject of Flynn specifically it should be noted that while his name wasn't masked in that call, it was masked in others (emphasis mine):

Then-Director of National Intelligence James Clapper also made an unmasking request for Flynn on Dec. 2, 2016, which also was prior to the Kislyak conversations; then-CIA Director John Brennan made requests on Dec. 14 and Dec. 15, 2016; and then-FBI Director James Comey made a request on Dec. 15, 2016.

So the claims that Flynn was never "unmasked" are slightly misleading here. Yes, that call never had him masked in the first place, but others did. We now have a list of people involved with the unmasking though whether it is significant remains to be seen (emphasis mine):

MYRE: So just after the 2016 election, Michael Flynn is named national security adviser. And he calls the Russian ambassador in Washington. The U.S. is listening in to this call because they're quite interested in the Russian ambassador. They're still trying to determine the role of Russian interference in the election. And they hear Flynn. When they print up the document, they redact his name. But officials in the Obama administration request the name of this person, not knowing who it is but then finding out that it's Flynn. The process works. It's approved. The material is sent over to these administration officials.

Now, we don't know exactly who read it and who didn't, but Joe Biden was one of those involved. We do know that. Flynn ultimately lasted less than a month in office. Trump said he lied about his contacts with Russian officials. And and he ultimately pleaded guilty to lying, although his case is still playing out, as we've heard in recent weeks.

CHANG: So is there any sign that something improper was done here?

MYRE: No. We want to be very clear about that. The two senators who released this, Republicans Ron Johnson of Wisconsin and Charles Grassley of Iowa - they said that these records they released are one step toward an important effort to get to the bottom of what the Obama administration did. But they're not alleging any wrongdoing at this point. Trump, meanwhile, has been talking about something he calls Obamagate and that there were crimes committed. But he's not making any specific charge. And a lot of critics are saying he's just trying to create an election year controversy but really doesn't have any substance to back it up.

So, back to the main question here, as this ever happened before? We don't really know. Most of the processes about what happens in FISA Courts is classified.

The names of the judges on the Foreign Intelligence Surveillance Court are public. But good luck trying to read the thousands of wiretap orders the court has approved since it was created in 1978. They are all secret.

The same article goes on to say that "victims of FISA wiretaps" may not even "know they were bugged:"

Ordinary wiretaps are sometimes challenged by defendants once they are charged, but victims of FISA wiretaps almost never even find out they were bugged. In 2008, a group of activists and journalists challenged a law that expanded this court's authority. They argued that their communications put them at risk of being caught up in government wiretaps. But earlier this year, the Supreme Court said these people could not show they had in fact been monitored, so it threw their suit out.

A moment of irony here: you might be secretly wiretapped but can't do anything about it because you can't prove you were secretly wiretapped. That's kind of seems like a Catch 22 if you ask me.

This whole situation is part of what happened in the Snowden controversy. He revealed the government had the authority to perform what some have called "legal warrantless searches:"

The National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens' email and phone calls without a warrant, according to a top-secret document passed to the Guardian by Edward Snowden.

Even though this has raised questions about whether abuse could occur an investigation into the matter in 2014 found "no indication of abuse":

Depending on the scope of collection, however, the applicable rules may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons. Although it is not known how many communications involving U.S. persons or people in the United States are acquired under Section 702, the limited figures available may provide some indication of the extent to which the government presently could be using such communications. Some of these figures illustrate that the Section 702 program remains primarily focused on monitoring non-U.S. persons located outside the United States. By the same token, the overall scope of collection under the program and the quantity of intelligence reporting derived from this collection involving U.S. persons suggest that the government may be gathering and utilizing a significant amount of information about U.S. persons under Section 702.

If so, this would raise legitimate concern about whether a collection program that is premised on targeting foreigners located outside the United States without individual judicial orders now acquires substantial information about U.S. persons without the safeguards of individualized court review. Emphasizing again that we have seen no indication of abuse, nor any sign that the government has taken lightly its obligations to establish and adhere to a detailed set of rules governing the program, the collection and examination of U.S. persons’ communications represents a privacy intrusion even in the absence of misuse for improper ends. The Board’s desire to provide more clarity and transparency regarding the government’s activities under Section 702, particularly insofar as they involve the acquisition and handling of U.S. persons’ communications, underlies a number of our recommendations.

Of course, it is worth noting that this is a governmental organization investigating the government, so it's unclear whether you can really trust them when they say this. But to be fair I guess I'll give them the benefit of the doubt here for now.

Worth noting that while what happens in FISA courts is usually classified, there have been efforts in recent years to declassify actions taken by the intelligence community, starting with the Obama administration in 2013:

In June 2013, President Obama directed the Intelligence Community (IC) to declassify and make public as much information as possible about certain sensitive U.S. government surveillance programs while protecting sensitive classified intelligence and national security information.

Since then, the Director of National Intelligence has declassified and authorized the public release of thousands of pages of documents relating to the use of critical national security authorities, including the Foreign Intelligence Surveillance Act. In addition to declassifying and publicly releasing these documents, the Intelligence Community has published several reports regarding these authorities, including the Statistical Transparency Report Regarding use of National Security Authorities, presenting metrics related to the use of certain authorities for calendar years 2013 and 2014 .

So while information on the FISA court's actions is currently little to none, that may change in the future, given that the Trump administration seems to have continued in Obama's footsteps in that regard by releasing a "Statistical Transparency Report" for the calendar years of 2017 and 2018.

In the mean time, though, we really have no way of knowing without having access to classified documents.

  • 2
    This article furthers the case that Flynn was never masked in the first place. Masking only applies to certain intelligence activities, not all of them
    – Machavity
    May 24, 2020 at 20:31

According to declassified ruling of the FISA court, in March of 2016, NSA Director Rogers became aware of improper access to raw FISA data and ordered an internal audit. The issue here is technically not unmasking (because raw FISA data has not been minimized/masked in the first place) but it is indicative the same essential violation of the intent of the section 702 and the FISA court to protect privacy rights of U.S. Persons.

Though the court's order is heavily redacted, some sense of the type of abuse can be gathered. In investigating potentially abusive searches of the raw FISA data, NSA analyzed searches performed between November 1, 2015 and May 1, 2016. The estimated that 85% of the sampled searches using "U.S. Person identifiers" were not compliant with the (secret) minimization procedures. Furthermore, the ruling indicates that the FBI and DOJ's National Security Division (NSD) improperly gave contractors access to search the raw FISA data without enforcing the FISA minimization and targeting procedures they had certified to the secret FISA court would be followed.

On April 18 2016 – Rogers shut down FBI/NSD contractor access to the FISA Search System. The names of the contractors and targets have been redacted, as has much of the detail indicating the extent and/or motivation of the improper access, but I'd suggest something morally equivalent to improper unmasking. As the extent of non-compliance with the intent of FISA section 702 was becoming clear, Rogers became the target of (unsuccessful) efforts from other intelligence community officials to remove him, as he continued to investigate instances of non-compliance, and of DOJ officials FISA court by filing with the court a certification of compliance which failed to disclose the non-compliance issues Rogers had been investigating. In October of 2016 the NSA director took further action to restrict FBI/DOJ NSD contractor access to the raw FISA information, and prepared to report his findings directly to the FISA court. The same month (and perhaps even the same day) the FBI applied for, and received the FISA warrant to spy on Carter Page under a different section of the FISA act.

One of the biggest problems with section 702, is that the minimization procedures which the NSA, CIA and FBI are administratively required to use are known to have a "backdoor" or shortcuts in the FBI's targeting and minimization procedures. Since these targeting and minimization procedures are themselves classified, the public has little knowledge of how they are enforced.

  • This is all true, but I would like to point out that non-compliance is slightly different then systematic abuse. Reading between the lines (the often very blacked out redacted lines) it sounds as if the primary issue was not intentional systematic attempt to abuse available information about us persons and more improper use of us person information as a result of laziness and not knowing how to comply with the rather complex procedure for minimization. So less "let's find out who Obama is calling" and more "I'm too lazy to check if John Doe may be a US person before I run this search..."
    – dsollen
    May 28, 2020 at 20:12
  • Some of that may have happened, but there was also cover-up, what the court referred to as "institutional lack of candor" in an apparent reference to the DOJ/NSD top leadership. That seems unlikely to be attributable to individual analyst, and the NSD head, John P. Carlin announced his resignation only one day after he signed the certification. May 28, 2020 at 20:43

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