This brief point may seem arcane to some, but it’s a good example of how sloppy uses of terminology turn into false analogies, so it’s worth a quick review.
News has erupted this week that in late 2020, the U.S. Justice Department sought a subpoena for the identities of Twitter users behind a set of parody accounts that mock and allegedly sometimes defame Rep. Devin Nunes of California. I’m not interested in the merits of that investigation or the case here, but go to town in the comments if you like.
Critics of the DOJ move are concerned about privacy and free speech, and it’s also not my argument that they don’t have a point. However, that’s not my point here.
The topic here is the use of the word “unmask,” when DOJ’s action in seeking a subpoena is discussed.
As the Law & Crime link shows, a court filing by Twitter, objecting to the subpoena, uses the word “unmask” to describe what DOJ was requesting. Popular media have been echoing the use of the term in reporting the event this week.
But “unmasking” is not what DOJ was requesting. DOJ was requesting Twitter to disclose the identities specified in the subpoena.
It’s perfectly within the scope and routine use of DOJ authorities to make that request. A court, of course, will decide the merits of the request.
But it’s not unmasking. Unmasking, in the lexicon of the U.S. government, has the specific meaning of removing the minimization “mask” put by NSA over U.S. person identifying information in communications NSA has monitored, reported, and/or makes available through a database.
Unless it’s NSA monitoring communications, and that’s how you know there’s USPI to unmask, it’s not unmasking. Twitter, the corporation, can’t be the source of protected identity information for which unmasking is requested. For identity information protected by Twitter, you go through law enforcement and the court to Twitter, for disclosure.
Why does this matter? Because it means there’s no nefarious “equivalency” here in what DOJ did in 2020 and what the senior personnel of the Obama administration were doing, by the hundreds, in 2015 and 2016.
The requests for USPI to NSA by Obama’s unmasking authorities – Susan Rice, Samantha Power, James Clapper – were unmasking requests.
Note the supreme difference: unmasking authorities don’t have to get a court order. (To the extent there are court orders involved — i.e., through the FISA court — they apply to the original, general monitoring authority for the communications, not to the unmasking action per se.)
The unmasking authorities won’t be denied the information. Only the president himself can overrule them, and the likelihood of NSA even appealing to him, much less the president overruling his senior officials, is nonexistent.
A subpoena from the DOJ, on the other hand, starts out having to traverse the wicket of a court’s approval.
The other key difference is that in the case of a subpoena seeking disclosure, the party whose identity is at risk, and/or the party protecting the identity, has the opportunity to oppose the subpoena in court. Which Twitter has done. There is no such opportunity for persons whose USPI is unmasked by an unmasking authority.
These are not the same actions. In one (unmasking), the information requested is monitored by NSA and can be viewed in its unprotected form by users with NSA-type access, but is minimized (i.e., “masked”) by routine procedures when it is presented for use to the broader intelligence community.
In the other instance, the information is not held by the U.S. government at all; it’s held by Twitter. DOJ can seek to have it disclosed through due process of law by applying to a court. There’s nothing inherently nefarious about that, although a court may well find the justification insufficient, as it apparently did in the case of Twitter and the users @DevinCow, @DevinNunesMom, @fireDevinNunes, and @DevinGrapes.
So the differences hold. Note this well:
Every unmasking request made by Obama’s officials resulted in USPI being exposed to those officials. There’s no functional brake on what those officials can unmask — other than just not collecting the intelligence in the first place.
DOJ’s request for disclosure from Twitter was rejected by the court, and the identity information of the Twitter users has not been exposed.
Don’t get suckered in to sloppy semantics. The “Barr DOJ” did nothing scandalously analogous to what the Obama national security council did.
For more reading on minimization and unmasking, see Executive Order 12333 (with Obama administration amendments) and U.S. Signals Intelligence Directive 18 (USSID 18), as redacted in a 2013 FOIA release.