March 13th, 2017

By Jonathan Lim, CHHS Extern

On March 4th, current President Donald Trump accused former President Barack Obama of wiretapping Trump Tower in a Tweet. Apparently, the accusation was based on a Heat Street article which stated that the FBI had sought and obtained a FISA warrant to “examine the activities of ‘U.S. persons’ in Donald Trump’s campaign with ties to Russia. The Heat Street reporter, Louise Mensch, later emphasized that her article only talked about the application for a FISA warrant itself, and not whether there was an actual wiretap of Trump Tower. This issue raises several questions: what is a FISA warrant? Can it authorize a wiretap? Does a sitting President ever have the authority to order a wiretap, and if so, when?

What is FISA?

FISA stands for the Foreign Intelligence Surveillance Act. It allows federal law enforcement and intelligence agencies such as the FBI, CIA, and NSA to apply for a FISA warrant in order to conduct surveillance on a target. The Government must show probable cause that the target is an “agent of a foreign power.” To be legal, the “significant purpose” of asking for the warrant must be to obtain foreign intelligence, and not—for example—be made solely for political reasons or even for domestic criminal investigations. The court that either approves or rejects the warrant is known as the FISC Court, and many of their proceedings are kept secret, which is why there remains some uncertainty over what tools the FBI may have used in this case. FISA and the FISC were previously put in a controversial spotlight because of the leaks by Edward Snowden in 2013. In part, this was because FISA warrants could still enable the surveillance of American citizens despite that fact that the warrants are ostensibly targeted at “agents” of a foreign power. The Snowden Leaks prompted the passage of the USA Freedom Act, which made the FISC slightly more transparent and changed a domestic surveillance law known as Section 215. However, it left FISA largely unchanged.

Can a FISA warrant be used to wiretap phones?

Wiretapping means “the use of covert means to intercept, monitor, and record telephone conversations.” So yes, as a FISA warrant authorizes any form of “electronic surveillance” that intercepts “wire or radio communication.” However, a physical wiretap of a phone is not the only kind of surveillance option it authorizes, and it may not be used if other types of surveillance are more likely to be effective. If the FISA warrant that Heat Street reported on is indeed related a Trump server’s link to Russian banks, it is possible that some other form of surveillance, targeted at the computer rather than a phone, is being used to investigate it.

Who is an “agent of a foreign power?”

By the term, one might think that an agent of a foreign power is necessarily a non-American. However, according to FISA’s own definitions, an agent of a foreign power can be a United States citizen, if that person is engaging in clandestine intelligence gathering or other intelligence activities “on behalf of a foreign power.” How exactly one might meet that definition in some cases is the subject of ongoing debate. However, the subject must be knowingly cooperating with a foreign power, not simply the beneficiary of a foreign power’s agenda.

Are there other ways to be wiretapped?

Yes. For example, investigators may seek authorization for a wiretap for a normal criminal investigation, known as a Title III warrant. There remains the possibility that someone in the Trump organization was under criminal investigation, and that a wiretap could have been authorized under a Title III warrant instead. The President, acting through the Attorney General, may authorize electronic surveillance even without a court order, but only against non-Americans.  The President may also authorize wiretaps of purely overseas communications without a warrant, as per Executive Order 12333, a Reagan-era Order that is still effective today.

Conclusion: Could I be Wiretapped?

Though FISA searches are intended to capture communications of foreign targets, U.S. persons should be aware that conversations with certain foreign officials may be legally intercepted under FISA, even if that person is not suspected of being an agent of a foreign power. This is because an “incidental” intercept of an American’s conversation with a targeted agent of a foreign power is legitimate under FISA. This is what happened to former national security advisor and retired General Michael Flynn – his conversations with the Russian Ambassador were intercepted because the Ambassador is de facto an “agent of a foreign power” who can be targeted by a FISA warrant at any time. When working with high level foreign officials, it may be best to assume that any conversation with them could be legally monitored under FISA, and to exercise due caution accordingly.

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