Incidental collection occurs when the government, while lawfully surveilling a foreign target, sweeps up communications involving Americans who weren''t the targets. The communications enter government databases even though no judge issued a warrant for the American and no probable cause existed to surveil them specifically. Under Section 702 of FISA, incidental collection is an expected and accepted feature of the surveillance program, not an error or accident.
The legal distinction that makes incidental collection constitutional under current doctrine is the "targeting" rule: the government targeted the foreigner, not the American. Courts have held that Fourth Amendment protection attaches to the target, not to all parties in a conversation with the target. Critics argue this logic allows the government to build massive databases of Americans'' communications simply by targeting their correspondents overseas, effectively circumventing the warrant requirement through a definitional loophole.
The practical stakes grew substantially as communications became global. An American journalist emailing a foreign official, a business owner calling an overseas supplier, or a student messaging a foreign classmate may all have their messages collected under Section 702 incidental collection. The FBI''s ability to then search those databases using American names — without a warrant — is what civil liberties advocates call the "backdoor search" problem.
Incidental collection means your communications can enter federal surveillance databases without anyone deciding you're a suspect. You're swept in because someone else was targeted. Understanding this tells you how surveillance laws that appear to target only foreigners can, in practice, create extensive records of ordinary Americans' international communications.
People often think "incidental" means the government accidentally collected data and will delete it. In practice, incidental collection is a designed feature of Section 702 — the government keeps these records and the FBI can search them using Americans' names without a warrant.
Incidental collection means your communications can enter federal surveillance databases without anyone deciding you're a suspect. You're swept in because someone else was targeted. Understanding this tells you how surveillance laws that appear to target only foreigners can, in practice, create extensive records of ordinary Americans' international communications.
People often think "incidental" means the government accidentally collected data and will delete it. In practice, incidental collection is a designed feature of Section 702 — the government keeps these records and the FBI can search them using Americans' names without a warrant.