On January 3, 2017, Section 2.3 of Executive Order 12333 – Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the NSA – was signed into effect.
Agencies and individuals can now ask the NSA for access to specific surveillance simply by claiming the intercepts contain relevant information that is useful to a particular mission. No privacy protection of the raw data occurs.
Under the new rules, sharing of information has been made significantly easier – and the information shared is raw and unfiltered.
Like many, I wondered at the timing of the order. What I found particularly curious was that it was so overdue.
Section 2.3 had been expected to be finalized by early to mid-2016. The order was reported as being on “the verge” of finalization in late February 2016 as reported by the NYT:
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.
James Clapper, Director of National Intelligence, didn’t sign off on Section 2.3 until December 15, 2016. The order was finalized when Attorney General Loretta Lynch signed it on January 3, 2017.
Some restrictions within the new order may provide some answers – particularly in light of subsequently discovered events.
The language highlighted below is new and did not exist in the older 12333 regulations.
An older version of Executive order 12333 may be found here. The prior version of Section 2.3 is significantly shorter than the new Obama Order.
From the Section 2.3 order.
On page 9 of the viewable document and page 6 of the actual document numbering:
(U) Section III – Protections for Raw SIGINT:
B. (U) General Protections:
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).
If the above language had been implemented in early 2016 when originally scheduled, surveillance requests and/or unmasking requests of the Trump Campaign would have been less likely to be granted.
Dissemination of this information to the Obama White House would have been made more difficult or prohibited.
From here, the language is primarily designed to allow for retention and distribution of raw SIGNIT information. Information that has already been gathered.
This would include Jared Kushner’s December 2, 2016 meeting with Russian Ambassador Kislyak that was discovered through intercepts of Russian communications. General Michael Flynn was also present at this meeting.
It would also include General Michael Flynn’s call with the Russian Ambassador that occurs on December 29, 2016. In addition, Flynn made an earlier call on December 22, 2016 in relation to Israel UN Sanctions.
Both the meeting and the calls were found to be legal and proper, but their disclosures to the media fed the growing Russia hysteria occurring at the time.
Michael Flynn would later plead guilty to lying – for unknown reasons – to FBI Agent Peter Strzok about these calls.
Page 10 of the viewable document and page 7 of the actual document numbering:
(U) Section IV – Processing Raw SIGINT:
An IC element obtaining raw SIGINT under these Procedures may use a selection term that is intended to select foreign communications on the basis of the identity of a communicant or the fact that the communications mention a particular person. The IC element will take all reasonable measures, if necessary on an ongoing basis, to determine whether a selection term is associated with a U.S. person or a person in the United States and may not use such a term unless authorized in accordance with this paragraph. These measures may include appropriate coordination with NSA or other Government departments and agencies. The IC element may only 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 one of the following circumstances exists:
1. (U) Current FISA targets:
Foreign communications known to be to, from, or about a U.S. person or a person located in the United States may be intentionally selected if such person is the subject of an order or emergency authorization authorizing electronic surveillance, a physical search, or an acquisition under sections 105, 304, 703, 704, or 705 of FISA, 50 U.S.C. §§ 1805, 1824, 188lc-e, at the time when such raw SIGINT is to be selected. (Note that this provision does not apply to a U.S. person or a person in the United States who is the subject of an order or emergency authorization under the pen register or business records provisions of FISA, 50 U.S.C. §§ 1842, 1843, 1861.) If there is any question about the applicability of such an order or authorization, the compliance organization or legal counsel must consult with the Office of Intelligence of the National Security Division, Department of Justice.
Unless authorized under paragraph 1, foreign communications reasonably likely to be to, from, or about a U.S. person or a person located in the United States may not be intentionally selected for the purpose of targeting a U.S. person or a person in the United States, unless approved by:
a. (U) The Attorney General, if all of the following requirements are met:
(i) – Redacted.
(ii) (U) The person is an agent of a foreign power or an officer or employee of a foreign power; and
(iii) (U) The purpose of the selection is to acquire significant foreign intelligence or counterintelligence information.
b. (U) The DIRNSA or the IC element head, or a high-level designee of the IC element head, if any of the following requirements is met:
(i) (U) The person consented.
(ii) (U) The targeted individual is reasonably believed to be held captive by a foreign power or group engaged in international terrorism.
(iii) – Redacted.
(iv) – Redacted.
(v) – Redacted.
Page 14 of the viewable document and page 11 of the actual document numbering:
(U) Section V – Retention:
D. (U) Communications between U.S. persons:
Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:
1. (U) When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC; or
2. (U) When the communication contains evidence of a crime or a threat of death or serious bodily harm to any person, or anomalies that reveal a potential vulnerability to U.S. communications security, the recipient IC element will notify NSA’s OGC, which will review it according to the applicable NSA procedures and policies.
Page 14 of the viewable document and page 11 of the actual document numbering under:
(U) Section VI – Dissemination:
B. (U) Criteria for dissemination of USPI:
[U.S. Person Information]. Subject to paragraph A and to paragraphs C, D, and E below, an IC element may disseminate USPI derived solely from raw SIGINT covered by these Procedures only if one of the following conditions is met, and if a high-level official as specified in the MOA determines that the recipient has a need for the USPI in the performance of his or her official duties:
1. (U) Consent. The U.S. person has consented to the dissemination of (i) communications to, from, or about him or her, (ii) data related to such communications, or (iii) information about him or her, and has executed an appropriate consent form.
2. (U) Publicly available. The USPI is publicly available information.
3. (U) Understanding foreign intelligence or counterintelligence. The USPI is necessary to understand the foreign intelligence or counterintelligence information or assess its importance.
a. (U) The information indicates that the U.S. person may be a foreign power or an agent of a foreign power or an officer or employee of a foreign power;
b. (U) The information indicates that the U.S. person may be engaged in the unauthorized disclosure of classified information;
c. (U) The information indicates that the U.S. person may be engaged in international narcotics trafficking activities;
d. (U) The information indicates that the U.S. person may be the target of hostile intelligence activities of a foreign power;
e. (U) The information is pertinent to a possible threat to the safety of any person or organization, including those who are targets, victims or hostages of international terrorist organizations; or
f. (U) The identity is that of a senior official of the Executive Branch of the U.S. Government. In this case, normally only the official’s title will be disseminated. A high-level official of the recipient IC element will ensure that domestic political or personal information that is not necessary to understand foreign intelligence or counterintelligence or assess its importance is not retained or disseminated.
Prior to the formal signing of Section 2.3, greater latitude existed within the White House in regards to collection of information – especially in relation to the Trump Campaign.
Thus, the delay in implementation. The Obama White House specifically delayed signing Section 2.3 until the final days of the Administration – after every possible byte of information had been collected.
Once signed into effect, Section 2.3 granted broad latitude to inter-agency sharing of information.
By the time the new order was signed on January 3, 2017, all information was already in the Obama White House’s possession.
Section 2.3 appears to have been specifically structured – and delayed – to allow the FBI and Obama Administration to engage in surveillance of the Trump Campaign. Once implemented, it was used to disseminate previously collected information as a means to discredit and undermine the Trump Presidency.
I thought this event important at the time. Enough so that I wrote about it previously. In light of new events, I find it more so now.
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