How to Spy on a President

Discussing President Trump’s weekend tweets accusing President Obama of wiretapping his phone calls during the campaign, Chuck Todd declared: “If it’s true, it’s an extraordinary political scandal, and if it’s not true, it’s an extraordinary political scandal.” In other words, either the Obama administration shredded the Constitution by eavesdropping on a candidate for the presidency, or there was no surveillance at all and the current president is hurling explosive lies.

These, however, are not the only possibilities. Trump’s tweets did not mention whether a court had granted permission for the alleged wiretapping. Instead his accusations appear to assume that wiretapping a phone line used by a presidential candidate would be illegal under any circumstances. But the law gives the government several legal avenues to acquire Americans’ communications and other personal information—and that may be the real problem.

A court order is the best-known—and least troubling—means for obtaining such information. If the government has probable cause to believe that the American is involved in criminal activity, the government can obtain a traditional warrant for electronic surveillance (generally called a “Title III order”) from a magistrate judge. If, instead, the government has probable cause to believe that an American—or any non-citizen who is located inside the United States—is an agent of a foreign power, it can obtain an order from the so-called “FISA Court” (known as a “Title I FISA order”) to conduct surveillance for foreign intelligence purposes.

Americans’ communications may also be acquired indirectly. Under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), if the target of surveillance is a foreigner overseas, the government, acting inside the United States, can acquire all of the target’s communications, including all of his communications with Americans, without any individualized court order. The FISA Court must approve the broad contours of the program, but it does not sign off on targeting decisions. There are even fewer constraints on foreign intelligence surveillance conducted overseas under Executive Order 12333.

Under both Section 702 and Executive Order 12333, various rules require the government to redact or delete any information about Americans “incidentally” acquired during the warrantless surveillance. However, there are several exceptions. For instance, information about Americans that is necessary to understand foreign intelligence or that is evidence of a crime may be kept and shared. Moreover, once the government has collected the communications, it may search them for information about Americans, which (in the case of information obtained under Section 702) can be used in ordinary criminal cases as well as national security investigations.

There are also various legal means for the government to obtain Americans’ business records, including records that reflect communications metadata (such as when, and to whom, calls and emails were sent) and financial transactions. Although such information can be extremely revealing, most courts consider it to be less sensitive than the content of phone calls or emails, and so the standard for acquiring it is low. In a foreign intelligence investigation, the FBI can obtain business records if it demonstrates to the FISA court that they are “relevant” to the investigation, the most permissive standard in the law.

It is not clear which of these authorities the government might have used, if any, to obtain information relating to Trump campaign aides (there are several conflicting reports on this score). What is clear, however, is that there was—and might still be—a multi-agency investigation into possible ties between the Russian government and several Trump associates. And given the existence of such an investigation, it is certainly possible that the government sought to make use of electronic surveillance or to obtain business records under one of the relevant authorities.

There should be no serious question about the appropriateness of the investigation itself. Last year the intelligence establishment unanimously concluded that Russia interfered with the election with the goal of ensuring Trump’s victory, a move that some have compared to an act of war. If there was even a shred of evidence that Trump’s aides were involved, it would have been dereliction of duty for the FBI not to investigate. In the course of investigating Russia’s interference, government agencies came across several pieces of evidence suggesting suspicious connections between Trump associates and the Russian government, which required follow-up.

And yet, as Cato Institute scholar Julian Sanchez has pointed out, “intelligence monitoring—whether direct or indirect—of persons connected with a presidential campaign inherently carries a high risk of abuse.” It is legitimate to ask whether the laws that govern surveillance contain sufficient protections against such abuse, as well as against other abuses, such as the surveillance of Americans based on their religion, political views, or ideology. There have long been concerns, on both the right and left, that the legal constraints on foreign intelligence surveillance contain too many loopholes that can be exploited to access information about Americans without judicial oversight or evidence of wrongdoing.

Regardless of whether any overreaching happened in this case—and there is no evidence, among the incomplete and conflicting accounts reported thus far, that it did—Trump’s tweet storm can serve as a prompt to reexamine the scope of our surveillance laws. If 140 characters designed to plunge the Obama administration into scandal can instead generate a long-overdue national conversation about surveillance authorities, we could all be better off for it.