Authored by Jeff Carlson via The Epoch Times (emphasis ours),
The Obama administration, just 17 days before the inauguration of President Donald Trump, revised the guidelines of Section 2.3 of Executive Order 12333, "Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the National Security Agency."
Although widely overlooked, the implications were broad and far-reaching.
Under the new procedure, agencies and individuals could request the National Security Agency (NSA) for access to specific surveillance simply by claiming the intercepts contain relevant information that's useful to a particular mission.
No privacy protection of the raw data was undertaken. Under the new rules, sharing of information was significantly easier–and the information being shared was raw and unfiltered.
At the time I wondered about the timing of the order. But what I found particularly curious was that it was enacted so late. Allow me to explain.
On Dec. 15, 2016, James Clapper, the director of national intelligence, signed off on Section 2.3 of Executive Order 12333. The order was finalized when Attorney General Loretta Lynch signed it on Jan. 3, 2017.
Why the pressing need to rush this order during the final days of his office? An order which allowed for significant expansion in the sharing of raw intelligence amongst agencies.
Was it to enable dissemination of information gathered by those in the Obama administration amongst intelligence agencies? But if so, why was the order not put into place earlier?
Why just weeks before President-elect Donald Trump officially took over the Oval Office?
Crucially, privacy protection of the underlying raw data from the NSA 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.”
When Obama’s new NSA Data Sharing 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 his administration.
But as I hinted at during the outset of our discussion, an equally valid question is, why was the order enacted so late? As it turns out, Section 2.3 was reported as being on “the verge” of finalization in late February 2016 as reported by the New York Times, which noted that “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.
Instead, for reasons that lack official explanations to this day, Section 2.3 was delayed until January 2017. Interestingly, the finalized version signed into effect by President Obama contains a provision relating to “Political Process” that hadn’t been in place in earlier versions.
One of the items within this provision prohibited dissemination of information to the White House. Remember that this provision would not impact President Obama whose administration ended in two weeks. But it would most definitely impact the dissemination of information to the incoming Trump administration.
If this new provision 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 quite possibly prohibited.
In other words, prior to the January 2017 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.
On July 27, 2017, Rep. Devin Nunes (R-Calif.), then-chairman of the House Intelligence Committee, sent a letter to the Director of National Intelligence Dan Coats regarding the ongoing leaks of classified information and the need for new unmasking legislation to address the problem.
Mr. Nunes’s letter specifically pointed out officials within the Obama administration, stating that “We have found evidence that current and former government officials had easy access to U.S. person information and that it is possible that they used this information to achieve partisan political purposes, including the selective, anonymous leaking of such information.”
Mr. Nunes noted that “one official, whose position had no apparent intelligence-related function, made hundreds of unmasking requests during the final year of the Obama administration.”