Surveilling Amer­i­cans is hard

The Washington Post Sunday - - FRONT PAGE - BY ELLEN NAKASHIMA ellen.nakashima@wash­post.com

For­eign in­tel­li­gence wire­taps have oner­ous ap­proval pro­cesses.

Wire­taps on Amer­i­cans in for­eign in­tel­li­gence in­ves­ti­ga­tions are not easy to get. And if you’re a can­di­date for pres­i­dent, it’s even harder.

That’s the ex­pe­ri­ence of cur­rent and former se­nior U.S. of­fi­cials who on Satur­day ex­pressed dis­be­lief at Pres­i­dent Trump’s ac­cu­sa­tion — lev­eled with­out any ev­i­dence — that Pres­i­dent Barack Obama had the can­di­date wire­tapped at Trump Tower be­fore the Novem­ber elec­tion.

Se­nior of­fi­cials, who spoke on the con­di­tion of anonymity be­cause such mat­ters are clas­si­fied, said that there had been no wire­tap on Trump.

Un­der the law gov­ern­ing for­eign-in­tel­li­gence sur­veil­lance in­side the United States, an FBI agent would need to show a fed­eral judge that there is prob­a­ble cause that the tar­get is an “agent of a for­eign power” — and that re­quires more than just talk­ing to, say, the Rus­sian am­bas­sador.

“Both crim­i­nal and for­eign in­tel­li­gence wire­taps have oner­ous and strict pro­cesses of ap­proval that re­quire not only mul­ti­ple lev­els of in­ter­nal Jus­tice Depart­ment re­view, but also re­quire court re­view and ap­proval,” said Matthew Wax­man, an ex­pert on na­tional se­cu­rity law at Columbia Univer­sity.

The law au­tho­riz­ing wire­taps in ter­ror­ism and es­pi­onage cases is known as the For­eign In­tel­li­gence Sur­veil­lance Act of 1978, passed out of re­forms rec­om­mended by a se­lect Se­nate com­mit­tee called the “Church Com­mit­tee” in the wake of spy­ing abuses by the FBI and the Na­tional Se­cu­rity Agency.

The law bars tar­geted elec­tronic sur­veil­lance on U.S. soil un­less the gov­ern­ment can show that the tar­get was a for­eign power or an agent of a for­eign power, and that the “fa­cil­ity” — the phone num­ber or email ad­dress in ques­tion — is be­ing used by the for­eign power or agent.

The law au­tho­riz­ing crim­i­nal in­ter­cepts — in cases such as mur­der, drug deal­ing or rack­e­teer­ing — is Ti­tle III of the Om­nibus Crime Con­trol and Safe Streets Act of 1968. Like FISA, the law re­quires prob­a­ble cause, but in this in­stance that the tar­get is about to or has com­mit­ted a crime.

In a na­tional se­cu­rity case, the FBI work­ing with at­tor­neys in the Jus­tice Depart­ment’s Na­tional Se­cu­rity Divi­sion pre­pare a dec­la­ra­tion lay­ing out their grounds for seek­ing a FISA or­der. A se­nior in­tel­li­gence of­fi­cial, typ­i­cally the FBI or CIA di­rec­tor, must cer­tify that the pur­pose is to col­lect for­eign in­tel­li­gence and that the in­for­ma­tion can­not be ob­tained by nor­mal in­ves­tiga­tive means.

Then the pack­age must be ap­proved by a se­nior Jus­tice of­fi­cial. Only three have au­thor­ity to ap­prove the or­der: the at­tor­ney gen­eral, the deputy at­tor­ney gen­eral and the head of the Na­tional Se­cu­rity Divi­sion.

An NSD at­tor­ney would then present the ap­pli­ca­tion to a judge of the spe­cial For­eign In­tel­li­gence Sur­veil­lance Court, made up of 11 fed­eral district judges ap­pointed by the chief jus­tice of the United States. They sit in ro­ta­tion, one judge at a time, typ­i­cally for a week. The court’s pro­ceed­ings are highly clas­si­fied, and gen­er­ally the court hears only the gov­ern­ment’s side of the case.

Fol­low­ing the rev­e­la­tions of wide­spread NSA sur­veil­lance by former in­tel­li­gence con­trac­tor Ed­ward Snow­den, Congress in 2015 cre­ated an am­i­cus cu­riae, or pub­lic ad­vo­cate, whom the judge can ask to weigh in on sig­nif­i­cant in­ter­pre­ta­tions of FISA.

FISA or­ders rarely are re­jected, in part be­cause lawyers will with­draw or amend an or­der if a judge sig­nals it will not pass muster. Once ap­proved, the or­der is served on the phone or In­ter­net com­pany that han­dles the num­ber or email ad­dress in ques­tion.

On av­er­age, in re­cent years, there have been about 1,400 to 2,300 FISA or­ders a year. Each or­der can con­tain mul­ti­ple names and num­bers or email ad­dresses.

In a crim­i­nal case, a fed­eral pros­e­cu­tor goes be­fore a fed­eral mag­is­trate and presents an ap­pli­ca­tion for a “Ti­tle III” or­der. In 2015, ac­cord­ing to the Ad­min­is­tra­tive Of­fice of the U.S. Courts, there were 1,400 wire­tap or­ders, cov­er­ing one or more de­vices. Some ex­perts, though, cit­ing phone com­pany trans­parency re­ports, say the of­fice’s num­ber ap­pears low.

In the old days, FBI agents would at­tach al­li­ga­tor clips to phone lines. To­day, a tech­ni­cian at a phone com­pany will type into a com­puter sys­tem the num­ber or email ad­dress, dig­i­tally cre­at­ing an­other line that goes to an FBI lis­ten­ing post. The FBI has sep­a­rate fa­cil­i­ties for crim­i­nal wire­taps and na­tional se­cu­rity in­ter­cepts. The lat­ter are gen­er­ally recorded for tran­scrip­tion. Crim­i­nal wire­taps are lis­tened to in real time.

Un­der Ti­tle III, if an agent hears a tar­get talk­ing to some­one not in­volved in the crime — like a pizza de­liv­erer, he or she is re­quired to hang up.

Un­der FISA, any in­for­ma­tion that does not have “for­eign in­tel­li­gence” value must be “min­i­mized” or masked in the tran­script. That in­cludes the names of U.S. cit­i­zens who are picked up speak­ing to the tar­get un­less their iden­ti­ties are rel­e­vant to un­der­stand­ing the for­eign in­tel­li­gence.

In a typ­i­cal coun­ter­in­tel­li­gence in­ves­ti­ga­tion, if an agent is try­ing to fig­ure out a tar­get’s net­work, con­ver­sa­tions — even those that might ap­pear in­nocu­ous at first — are more likely to be con­sid­ered rel­e­vant. Thus the min­imi za­tion rules for na­tional-se­cu­rity wire­taps are more le­nient than those for crim­i­nal wire­taps be­cause spies and ter­ror­ists gen­er­ally use more so­phis­ti­cated trade­craft to evade sur­veil­lance.

The com­mu­ni­ca­tions of peo­ple who are speak­ing to the tar­get are termed “in­ci­den­tal.” The FBI, for in­stance, rou­tinely wire­taps the for­eign em­bassies of ma­jor ad­ver­saries such as China and Rus­sia — in­clud­ing in­ter­cept­ing the cell­phone con­ver­sa­tions of se­nior diplo­mats. Any­one speak­ing to any of th­ese tar­gets would have their con­ver­sa­tions picked up as in­ci­den­tal col­lec­tion.

It is pos­si­ble, some former of­fi­cials said, that there may be record­ings of phone con­ver­sa­tions be­tween some­one in Trump Tower and a Rus­sian of­fi­cial or of­fi­cials. If so, the most likely ex­pla­na­tion is that the sur­veil­lance was be­ing con­ducted on the Rus­sian of­fi­cials, who his­tor­i­cally have been un­der cour­tau­tho­rized FISA sur­veil­lance.

Those talk­ing to the tar­get would have had their con­ver­sa­tions picked up as in­ci­den­tal col­lec­tion.

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