Information Privacy Law
February 16, 2017
Among the questions arising from National Security Adviser Michael Flynn’s resignation this Monday, some are wondering whether the U.S. intelligence officials who recorded Flynn’s phone conversation with the Russian ambassador acted lawfully. A recent Wall Street Journal editorial states that “U.S. intelligence services routinely get orders from the Foreign Intelligence Surveillance Court to monitor foreign officials. But under U.S. law, when they get those orders they are supposed to use ‘minimization’ procedures that don’t let them listen to the communications of Americans who may be caught in such eavesdropping. That is, they are supposed to protect the identity and speech of innocent Americans.” On the other hand, by virtue of his position, the Russian ambassador is an “agent of a foreign power,” and is therefore a valid target for wiretapping under FISA.
The minimization procedures required of such wiretaps are only required to the extent “consistent with the need for the United States to obtain, produce, and disseminate foreign intelligence information.” Substitutions are sometimes required when the name of a U.S. person is mentioned in the recording, but these substitutions are not required when that person’s name is necessary to understanding the intelligence significance of the information in question. In short, Flynn’s involvement is largely what makes the phone conversation foreign intelligence information. FISA legislative history supports this conclusion by way of analogy:
One example [of a situation in which a U.S. person’s name could be disseminated in an intelligence report] would be the identity of a person who is the incumbent of an office of the executive branch of the U.S. Government having significant responsibility for the conduct of U.S. defense or foreign policy, such as the Secretary of State or the State Department country desk officer. The identifiers of such persons would frequently satisfy the “necessary to understand” requirement, especially when such person is referred to in the communications of foreign officials.
At the time of the phone conversation, Flynn was not the incumbent, but this seems insufficient difference to justify reaching a different conclusion in determining whether wiretapping Flynn was proper.