On Jan. 3, 2017, another section of Executive Order 12333, Section 2.3 Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the NSA [National Security Agency], was signed into effect by the Obama administration. James Clapper, the director of national intelligence, signed off on Section 2.3 on Dec. 15, 2016, and the order was finalized when Attorney General Loretta Lynch signed it on Jan. 3, 2017.
The new order allowed for the other intelligence agencies to ask the NSA for access to specific surveillance simply by claiming the intercepts contain relevant information that would be useful to a particular mission. Crucially, privacy protection of the underlying raw data was specifically bypassed by the order.
As the New York Times noted at the time, “the new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws.”
On its face, the rule was supposedly put in place in order to reduce the risk that “the N.S.A. will fail to recognize that a piece of information would be valuable to another agency,” but in reality, it dramatically expanded government officials’ access to the private information of American citizens.
As noted by the NY Times, historically, “the N.S.A. filtered information before sharing intercepted communications with another agency, like the C.I.A. or the intelligence branches of the F.B.I. and the Drug Enforcement Administration. The N.S.A.’s analysts passed on only information they deemed pertinent, screening out the identities of innocent people and irrelevant personal information.”
However, with the Jan. 3, 2017, approval of Section 2.3, and the associated expansion of sharing globally intercepted communications, other intelligence agencies would be able to search “directly through raw repositories of communications intercepted by the N.S.A. and then apply such rules for ‘minimizing’ privacy intrusions.”
The requirement for this broad latitude was fairly simple and spelled out in the executive order.
An “Intelligence Community element” may “intentionally select foreign communications of or concerning a U.S. person or a person in the United States if the element’s compliance organization or legal counsel confirms that” the targeted person is a “current FISA target” or has been determined to be “an agent of a foreign power or employee of a foreign power” and the “purpose of the selection is to acquire significant foreign intelligence or counterintelligence information.”
As of Oct. 21, 2016, although it wasn’t known to the public, Carter Page met these requirements.
When the order was signed, many wondered at the timing and questioned why there was a pressing need to rush an order that allowed for significant expansion in the sharing of raw intelligence among agencies during the final days of the Obama administration.
An equally valid question was why was the order so overdue.
Section 2.3 was reported as being on “the verge” of finalization in late February 2016 as reported by the NY Times:
“Robert S. Litt, the general counsel in the office of the Director of National Intelligence, said that the administration had developed and was fine-tuning what is now a 21-page draft set of procedures to permit the sharing.”
It had been anticipated that the order would be finalized by early- to mid-2016.
Interestingly, the finalized version contained a provision relating to “Political Process” that hadn’t been in place in earlier versions of Section 2.3:
“3. (U) Political Process in the United States. [Any IC element that obtains access to raw SIGINT under these Procedures will] Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).” [emphasis added]
If the above language had been implemented in early 2016 as originally scheduled, dissemination of any raw intelligence on or relating to the Trump campaign to officials within the Obama White House would likely have been made more difficult or prohibited.
In other words, prior to the signing of Section 2.3, it appears that greater latitude existed for officials in the Obama administration to gain access to information. But once the order was signed into effect, Section 2.3 granted greater latitude to interagency sharing of that information.” (Read more: themarketswork, 4/20/2020) (Archive)