Reforming Surveillance In the Age of Donald Trump

Publication Type: 
Other Writing
Publication Date: 
March 25, 2017

On Wednesday, the Republican chair of the House Intelligence Committee, Devin Nunes (R-CA), gave a press conference in which he reported that Trump transition team members’ communications were intercepted by US intelligence agencies through “incidental collection.” This follows on Nunes’ concerns, after Michael Flynn stepped down following intelligence reports that he had talked to the Russian ambassador. Nunes (R-Calif.) said then, “[t]he big problem I see here is that you have an American citizen who had his phone calls recorded.”

Nunes’s concern for Flynn was misplaced. The Russian ambassador, Sergey Kislyak, is an obvious foreign intelligence target. If Flynn was talking to him, he would almost certainly be recorded as part of “incidental collection.” Depending on who Trump transition team members were speaking with, their incidental collection might also be unsurprising.

But Nunes is broadly correct that Americans’ sensitive communications are picked up by incidental collection and that the minimization rules governing how those conversations are handled are not robust enough to protect American privacy from official and unofficial mishandling.

As I explain in my new book, American Spies: Modern Surveillance, Why You Should Care, and What to Do About It, “incidental collection” is what the intelligence community calls the monitoring of Americans that happens as a result of surveillance targeting foreigners. The phrase makes it sound like there are only a few incidents when this kind of collection happens. In other words, incidental sounds unintentional and insignificant. But incidental collection can overwhelm collection about the target. Depending on the legal authority underpinning foreign intelligence interceptions and the technology used to conduct the collection, spying on foreigners can have a huge impact on American privacy. Use of the word “incidental” obscures this truth. 

Thanks to Nunes, the public is getting a little more insight into how intelligence agencies may be handling incidental collection. Many of Trump’s officials, with their international business activities, are probably well-represented in foreign intelligence intercepts. That makes them vulnerable to having their materials searched for political purposes. To prevent this kind of abuse, intelligence officials regularly point to “minimization policies” as the means to provide appropriate protections for American privacy. These policies are supposed to limit the dissemination of information to matters of foreign intelligence or, if to the FBI, criminal behavior. Further, the names and identifying information of American citizens are supposed to be blacked out, or masked, unless necessary to understand the foreign intelligence information.

In his Wednesday press conference, Nunes said that details of calls with little foreign intelligence value were passed around the intelligence community and that names of Trump transition officials were “unmasked”, or not blacked out. This is a serious allegation. Nunes, as chair of the House Intelligence Committee, is charged with overseeing minimization policies and how they are implemented. He is telling us that he finally took a look and did not like what he saw.

Read the full post at Just Security