Last night, National Security Advisor Michael Flynn gave his resignation after he was caught lying to the vice-president about the contents of conversations with the Russians. Some have begun to ask how it could possibly be legal for the FBI to have recorded his calls.

Legality

In short, it's perfectly legal, assuming it was the Russian ambassador who was targeted. FISA allows the use of wiretaps and pen registers against "agents of a foreign power". The Russian ambassador is unquestionably an agent of a foreign power. So recording the calls is legal.

But there are supposed to be minimization procedures which strip out information about "U.S. persons". What happened to those? Lawfare explains better than I can. But to summarize: minimization procedures allow intercepts to be associated with a U.S. person if the identity of the person is important to understanding the intercept. Therefore, the intercepts mention Flynn because the intercepts are meaningless unless you know the ambassador is talking to the future National Security Advisor.

Should this be legal?

So it's legal. Should it be?

In our opinion, no. This is the government's constant drive toward expanded spying powers coming home to roost. It used to be minimization procedures would require not capturing anything involving a U.S. person. Then the procedures were loosened, to what is described above. Now they've been loosened so much that the intelligence agencies can go on fishing expeditions for evidence.

We've written before about the danger of "incidental collection". Now the president and his staff are reaping the consequences. Before Flynn's conversations wouldn't have been collected. Now they've now been "incidentally collected" and used outside of a court in a way that has very real consequences.

What next?

This will have a huge chilling effect on diplomats and government officials. No official is going to be able to talk to a foreign government official without knowing they're being recorded. They'll constantly be worrying about displeasing members of the intelligence community. They will know that if they do, the contents of their conversations will be released to the public, scandal will ensue and they'll be forced to resign.

We hope that after seeing the very real effects of the current loose restrictions, the politicians decide to fix them. These events are a clear warning on the potential abuses associated with current surveillance powers. Laws fixing this ought to be a non-partisan issue and pass easily.

The threat continues...

In the meantime, mass surveillance continues to threaten our democracy. It empowers spies to pick and choose winners and losers. It empowers spies to put pressure on politicians to propose (or oppose) certain things. In short, it hands spies the perfect tools to blackmail politicians and ensure no reform ever happens.

We don't expect this to happen. The intelligence community is not a unified body. There is no true intelligence czar, no one person directing events from the shadows. But the risk is real. So is the need for reform.

No matter where you lie on the political spectrum, we encourage you to call your legislators and ask for reforms.