The Republican chair of the House Intelligence Committee, Devin Nunes has just said that Donald Trump’s communications were likely picked up by US intelligence agencies through “incidental collection.” Before Nunes’ statement, I interviewed Jennifer Stisa Granick, the director of civil liberties at Stanford University’s Center for the Internet and Society, about her new Cambridge University Press book, “American Spies: Modern Surveillance, Why You Should Care and What to Do About It,” which was just published by Cambridge University Press. The interview discusses incidental collection, describing both how Nunes’ previous concerns about the incidental collection of communications involving former Trump National Security Adviser Michael Flynn were misplaced, and how incidental collection of information on US citizens raises broader issues.

HF: There is a big debate about reauthorizing key electronic surveillance programs. What are they, and why are they controversial?

JSG: The government has two programs to gather the contents of Americans’ communications with foreigners from inside the United States — without first going to a judge and getting a search warrant. PRISM involves obtaining the information from major Internet providers such as Google, Apple, Yahoo and Skype. Upstream involves tapping the Internet backbone and searching for “selectors” associated with foreign intelligence targets. These are not counterterrorism programs. The statute allowing PRISM and Upstream to take place authorizes surveillance for any “foreign intelligence” purpose, including the collection of information about a foreign power or territory that is related to “the conduct of the foreign affairs of the United States” (a phrase that could include just about anything).

Even though the targets of surveillance must be foreigners believed to be outside the country, these controversial programs suck massive amounts of private data — including data on U.S. persons into government databases. The FBI can then search some of the data about U.S. persons without a warrant or finding of “probable cause.” This is called the “backdoor search loophole.” Agents could use this information to learn about a person’s religious beliefs, contacts with the press, sexual behavior and medical situation.

The statute authorizing PRISM and Upstream collection — section 702 of the FISA Amendments Act — will expire at the end of the year, unless Congress reforms or reauthorizes it.

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