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Watergate was just a private break-in by private actors. To preclude either Watergate or Cointelpro from ever occurring again, and in response to Justice Douglas warnings about illegal uses of electronic surveillance, Congress passed laws to conform surveillance to the twin mandates of the First and Fourth Amendment.

The means our government uses to protect the First and Fourth Amendment rights of Americans without sacrificing the countrys security needs for information gathering on foreign threats is a process known as minimization and masking. The point of the minimization and maskingprotocolsis to insure Americas eavesdropping on foreigners safeguards the constitutional rights of U.S. persons. These protocols are not merely internal rules nor discretionary guidelines; they are the necessary legislatively delegated means required to protect theprivacyrights of U.S. persons provided for by the Bill of Rights of the United States Constitution.Violating these provisions does more than violate mere regulatory restrictions; violating these provisions violates the Constitutional rights of Americans. That is why the law criminalizes such action when taken under color of law by rogue agents.

The law imposescriminalsanctions on government officials who engage in electronic surveillance under color of law except as authorized by statutes and governing regulations implementing those statutes. This same criminallawmakes a person guilty of an offense if she intentionally discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained in a manner not authorized by law. Notably, the law enforcementdefenseis limited to law enforcement or investigative officer cleared to do so by a search warrant or court order. The crime imposes a term ofimprisonmentup to sixty months in a federal prison.The point of the law criminalizing rogue agents either intercepting Americans conversations illicitly or unmasking they identities illegally is to protect against rogue government agents from abusing the most powerful surveillance means ever developed to invade the free speech, free thought, free expression and intimate privacy rights of all Americans.

According to both FBI DirectorComeyand NSA DirectorClapper, no warrant ever authorized the intercepts and electronic surveillance on a member of Trumps team. Yet, Chairman Nunesreportssuch intercepts occurred, identifying them as incidental. As law professor GlennReynoldsrecently noted, recent reports raise doubts on how incidental it was. And now,national security reporter Eli Lake ofBloombergNews reports note that former National Security Advisor SusanRice unmasked apparently some of Trump transition team members whentheir communications were caught in Americas Snowden-reported expansive surveillance web. It appears what Snowdenwarnedof how this wide net of eavesdropping would inescapably be misused by the Hoover-ites in the government may have cometrue.

The key question now is simple: what legal basis did Susan Rice have to order the unmasking of Trump team members? If the information was inadequate to justify a FISA warrant (or the Obama White House wanted to keep some members of the intelligence community out of the loop?), what permissible purpose justified the unmasking? How significant is this?

As the minimization and maskingprotocolscompel, the incidental information gathered by the NSA spying machine is legally protected from public disclosure and is to be used only for official purposes of National Security Agency/Central Security Services. All users with access must strictlyadhereto all classification and handling restrictions. Sound familiar?Who could ever imagine the Obama foreign affairs apparatusmishandlingclassified information? Who could ever imagine SusanRice, whose Secretary of State bid failed due to her Benghazi-implicated scandals, behaving badly? Who could ever imagine the Obama administration spying on Americans in dubious ways, like say, trying tosurveilthe Associated Press, spy on a Fox Newsreporter,eavesdropon his own allies, joke about drone bombing Wikileaks founderAssange, or trying to lock up morewhistleblowersthan all prior administrations combined?

Essential aspects of thoserulesrequire that intercepted communications between persons in the United States inadvertently intercepts during the collection of foreign communications will be promptly destroyed unless the Attorney General determine that the contents indicate a threat of death of serious bodily harm. As for communications that incidentally intercept an American and a foreigner, the information concerning U.S, persons must be disseminated in a manner which does notidentifythe U.S. Person. The only exceptions to this allowunmaskingwhen the communications concern varieties of probable cause of a crime, such as that the U.S. person is working as an agent of the foreign power to engage in criminal conduct, disclosing classified information without authorization, engaged in international narcotics activity, engaged in criminal activity, is the target of hostile intelligence activities of a foreign power, is terrorism connected, a threat to safety, or is an existing senior official. Of critical note, at all times theunmaskingmust made by the appropriate approval authority and must fit a need for the identity for the performance of his official duties. Note what is not present: unmasking for partisan aims, political purposes, or personal enmity. To be clear,we dont know why Susan Rice unmasked these identities, but given the political nature of this case, it is reasonable to question her motives.

Some defenders of Rice suggests she could label anything she wanted of foreign intelligence value, under the implementing regulatory protocols and thereby label it foreign intelligence information under the statute. The law is not so broad. Instead, the statute requires foreign intelligence information be necessary to the conduct of foreign affairs and to the persons position, and further employs a more limiting specific definition in the regulations in USSID for warrant-less seizures, as necessary to make it constitutional under the 4th Amendment. That definition is limited to criminal conduct type behavior, or its security equivalent. That is why the regulatory protocols give specific examples of the type of information that meet this standard of foreign intelligence value. What are those examples? Criminal-type behavior or imminent security risks. Why those restrictions? Because that makes it conform to the First and Fourth Amendment limitations on the intercept of Americans private political conversations. The examples are not prohibitive of like conduct being included, but it must belikeconduct e.g., criminal-type behavior or imminent-safety risk. Why? So it can be constitutional under the 4th Amendment, because the act of unmasking is an act of invading Americans privacy, covered by the 4th Amendment, and political speech in private is a right protected by the First Amendment. This is the biggest mistake the Obama defenders have been making, and reflects their lack of understanding of the laws Constitutional context and legislative history. Put most simply, neither the 1st Amendment nor the 4th Amendment has a talking to foreigners exception.

Hence, the reason Schiff was soshiftyon Jake Tapper on Sunday after Schiff read the unmasked intel at the invite of the White House last week. Was it because he saw unmasked identities on conversations that could not fit any of those very narrow, constricted, limited legal circumstances allowed? Susan Ricefeignedno knowledge of any incidental intercepts just a few a weeks back.Why say so if she thought it never happened and any unmasking was completely legal? (Note: A source close to Rice told CNN reporter Jim Sciutto that the idea that Ambassador Rice improperly unmasked the identities of Americans is false.)

Regardless, Susan Rice, and the Obama administration, appeared to have often skipped the Constitutional limits on their duties while in office; now might be a good time to buffup on the Fifth Amendment, and the right to counsel. Congress may be calling soon.

Robert Barnes is a California-based trial attorneywhose practice focuses on Constitutional, criminal and civil rights law. You can follow him at@Barnes_Law

This is an opinion piece. The views expressed in this article are those of just the author.

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Why Susan Rice's Reported 'Unmasking' of Trump Officials Raises Very Serious Legal Concerns for Her - LawNewz