Intelligence agencies could have inadvertently collected and then searched Donald Trump’s phone calls under a controversial loophole in surveillance law, experts say, even if it did not involve a wiretapping order from a federal court.
The intelligence community may legally conduct so-called “backdoor searches” of Americans’ communications, without a warrant, if the target of the surveillance is not a U.S. citizen.
If Trump or his advisors were speaking directly to foreign individuals who were the target of U.S. spying during the election campaign, and the intelligence agencies recorded Trump by accident, it's plausible that those communications would have been collected and shared amongst intelligence agencies, surveillance law experts say.
The intelligence community’s ability to use data gathered through incidental collection outrages civil liberties advocates, who say law enforcement agencies should be required to get a warrant.
But at least for now, it’s both legal and common — and could provide an explanation for Trump’s claim that former President Obama “wiretapped” Trump Tower.
“I'd bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” President TrumpDonald TrumpMan sentenced to nearly four years for running scam Trump, Biden PACs Meadows says Trump's blood oxygen level was dangerously low when he had COVID-19 Trump endorses David Perdue in Georgia's governor race MORE said in a tweet on Saturday morning.
The notion that Trump or his associates were wiretapped directly — much less at the behest of President Obama — has not been substantiated. Congressional intelligence leaders say they have seen no evidence of such a wiretap, and experts call the scenario far-fetched.
For one thing, the president has been unable to directly order wiretaps since the post-Watergate reforms of the 1970’s.
There are just two authorities for wiretapping an American citizen — a Title III criminal warrant or a legal order from a clandestine intelligence court.
But there are two major surveillance policies under which intelligence agencies could have performed backdoor searches of the president’s communications, neither of which would require a warrant. Both authorities govern U.S. surveillance of foreigners, one domestically and the other abroad.
Under the Foreign Intelligence Surveillance Act (FISA), which governs spying on foreigners within U.S. borders, law enforcement agencies can petition the closed-door intelligence court for a legal order to surveil a given target.
It is possible to obtain a FISA warrant on a U.S. person, but Justice Department officials would have to demonstrate to the court that the individual was acting as an agent of a foreign power.
Former director of national intelligence James Clapper over the weekend testified publicly that there was no FISA warrant on either Trump or his associates, but some reporting has suggested that the court did authorize the FBI to monitor the transactions of a pair of Russian banks.
If any of Trump’s associates communicated directly with the targets of that court order, intelligence agencies would have legal access to the content of those communications.
This is almost certainly how former national security adviser Michael Flynn was discovered to have discussed sanctions with Russian ambassador Sergey Kislyak, experts say. Kislyak was likely the target of a FISA order, and his call to Flynn was collected under that order.
Another, less well-understood surveillance authority comes from a Reagan-era executive order known as 12333, or “twelve triple-three.”
EO 12333 — much of which is redacted — governs U.S. intelligence-gathering overseas. It has come under fire from civil liberties advocates, who say it gives the intelligence community a blank check to regulate its own spying.
Under the order’s signals intelligence procedures, the attorney general can authorize searches of communications to or from an American for the purposes of targeting that American — again, as long as the attorney general determines that person is an agent of a foreign power.
And under some changes made to the executive order in the waning days of the Obama administration — which had been in the works for the better part of a year — the National Security Agency (NSA) now uploads the stream of intercepted intelligence directly to searchable repository that other intelligence agencies can sift through.
The NSA has always had the capability to share information gathered under 12333 with other agencies — like the FBI, for example — but now it does so automatically, without monitoring the content first.
Most surveillance experts believe that if — and that’s a big if — Trump’s communications were swept up by intelligence agencies, it was likely done under a FISA court order.
“If there was a FISA wiretap order on the Russian ambassador, I see absolutely no reason why a backdoor search on that collection wouldn’t be legal and total plausible,” said Nate Cardozo, a senior staff attorney with the Electronic Frontier Foundation. “I would believe that in a second.”
Conversely, he said, “It’s possible that if they were doing backdoor searches on collection that occurred in Russia [under 12333] but unless people were calling Russia directly from Trump Tower — which would be a story in and of itself — that’s not very plausible.”
“Backdoor surveillance” also was not what Trump was claiming, Cardozo noted. Trump’s tweets suggest that the collection of the data itself occurred within Trump Tower.
“The only thing that matches what Trump tweeted would have been a FISA wiretap of some variety — because he’s saying the collection occurred in Trump Tower, and if it occurred in Trump Tower, it can’t be 12333,” Cardozo said.
Trump has opened up a war on leakers within the intelligence community, blaming Obama-administration holdovers for a series of media reports linking campaign officials to Russian interests.
The New York Times reported in January that in the waning days of the Obama administration, some White House officials scrambled to spread information about possible contact between Trump associates and Russians across the government.
But most surveillance experts say that while it's possible Trump’s communications were the subject of a backdoor search, there's little public evidence to suggest that.
“In this world, there may be little difference between going out and collecting something new and searching through what we already have,” Sen. Ron WydenRonald (Ron) Lee WydenSenate parliamentarian looms over White House spending bill Democrats push tax credits to bolster clean energy Five reasons for concern about Democrats' drug price control plan MORE (D-Ore.) said in remarks given last week. “The capacity to collect the most politically sensitive communications of American politicians, political activists, or journalists is apparent.”
Still, experts say it’s unlikely that the leaks about Trump’s campaign are the direct descendent of raw intelligence gathered under either FISA Section 702 or 12333.
Many of the major leaks — such as a New York Times report that agents had uncovered regular contact between Russian officials and some campaign members — all seem to be drawn from finished intelligence products, which would be an amalgamation of raw data from multiple streams. Experts say it would be nearly impossible to untangle what was drawn from which collection authority — if, indeed, either was used.
“In short ... Trump [has] advanced claims far more dramatic than anything the public evidence can support,” writes Cato senior fellow Julian Sanchez.