Incidental Collection Is Extremely Troubling, Regardless of Legality

A lot of ink has been spilled over statements by House Intelligence Committee Chairman Nunes that President Trump’s communications were incidentally collected pursuant to a surveillance order under the Foreign Intelligence Surveillance Act (FISA). This has a lot of Americans scratching their heads and asking what incidental collection is, so now seemed like a good time to explain.

Incidental collection happens when an individual is in contact with the target of surveillance. So if Bob were being targeted for surveillance and Alice called or emailed Bob, Alice’s communications with him would be collected incidentally. Incidental collection happens over the course of most surveillance, whether it is targeted surveillance under traditional FISA authorities, or it is large scale surveillance pursuant to Section 702 of the FISA Amendments Act where vast amounts of Americans’ communications are swept up by the National Security Agency (NSA).

Under traditional FISA authorities, surveillance is targeted at a single person, and the NSA conducts it pursuant to a warrant based on probable cause that the target is a foreign power or an agent of a foreign power. Here, if Bob is targeted for surveillance and Alice contacts him during that surveillance, resulting in the incidental collection of her communications with him, her name should be redacted or “masked” unless leaving it un-redacted provides foreign intelligence value.

But, there’s a loophole. If the NSA analyst reviewing the information believes Alice’s communications may contain evidence of any crime, the NSA can share those communications with law enforcement or other relevant agencies. Those agencies can use that information in their investigations and prosecutions, even if the crimes are completely unrelated to the purpose for surveilling Bob’s communications, or to foreign intelligence or national security investigations.

When it comes to surveillance under Section 702, incidental collection of Americans’ communications and this loophole are profoundly troubling. Since 2013, there have been nearly 100,000 targets for surveillance under Section 702 each year, and that number is steadily increasing. This means that for each of those 100,000 Bob’s under surveillance, there may be at least one Alice whose communications are being incidentally collected. 

Here, no judge approves decisions on who to target for surveillance. The Attorney General and the Director of National Intelligence have complete discretion over whose communications to target, and the standard for surveillance is much lower than what is required under the traditional FISA authorities. A determination need only be made that collecting foreign intelligence information is a significant purpose of the surveillance.

This low standard is compounded by an extremely broad definition for “foreign intelligence information.” It goes well beyond information relevant to counterespionage, national security and defense. It also includes information relevant to the “foreign affairs” of the United States. This can result in surveillance that targets academics, lawyers, businesspeople, and activists abroad, and thus, far-reaching incidental collection of Americans’ communications.

Additionally, under Section 702, individuals do not necessarily need to be in contact with the target of surveillance for their communications to be incidentally collected. They merely need to be communicating “about” the target. Under Section 702, this “about collection” happens via an upstream surveillance program where the NSA essentially wiretaps the underwater fiber optic cables across which the vast majority of global internet traffic transits, including Americans’ communications. It then scans all of those communications, and collects anything that is “to”, “from”, or “about” a target. This collection has a troubling history of compliance issues resulting from the collection of tens of thousands of wholly domestic communications each year. There are also concerning technical limitations that make it impossible in many cases for the NSA to collect only a single targeted internet communication. Instead, the NSA sweeps up entire batches of communications, many of which may be unrelated to the target.

According to leaked NSA slides, the kinds of communications that can be incidentally collected under Section 702 include everything from Americans’ content from emails, video and voice chats, video conferences, VoIP, posted videos, photos, file transfers, account activities such as logins, details about social networking accounts, and “special requests” which the leaked slides don’t define.

Unfortunately we have no way of knowing just how many Americans’ communications are incidentally swept up under Section 702. In 2011 Senator Wyden began asking the Office of the Director of National Intelligence for an estimate of the number of Americans whose communications are collected under Section 702. Since then, 14 members of the House Judiciary Committee and dozens of privacy groups have joined in that demand for information. After almost six years, the Intelligence Community has been unable to provide members of Congress and the American people with an estimate.

The only available information about the scale of incidental collection under Section 702 comes from raw intelligence obtained by the Washington Post as part of the materials revealed by Ed Snowden. The Washington Post surveyed those materials and found that 90% of communications collected under Section 702 “were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.” Remember, under current law, any of the communications incidentally collected under Section 702 can be used by federal agencies like the FBI in investigations or prosecutions.

With all of this in mind, two things are clear: first, large scale surveillance under Section 702 creates the potential for any Americans’ communications to be swept up and disseminated throughout or used by intelligence and enforcement agencies in the federal government, whether they’re ordinary citizens, members of Congress, or the president of the United States of America. Second, since Section 702 is set to expire on December 31 of this year, Congress must begin seriously considering how to limit incidental collection of Americans’ communications and those of innocent people abroad, and ensure that any communications that are collected are not disseminated or used, except for the purpose for which the surveillance was authorized.

Image: Win McNamee/Getty. 

About the Author(s)

Robyn Greene

Policy Counsel for the Open Technology Institute at New America Foundation Follow her on Twitter (@robyn_greene).