The flurry of Presidential tweets about New York offices in Trump Tower being tapped by the Obama administration has been headline news for a while. While the claim has not yet been substantiated, The Hill explains that intelligence agencies might have been listening in even without a warrant from a federal court.
"Backdoor searches" are permitted of communications involving non-U.S. citizens. Someone under surveillance may be speaking with an American citizen whose conversation is then captured as well – with no warrant required.
If Trump or members of his team were speaking with a non-U.S. citizen who was being investigated for spying during the election process, then it might be the case that those conversations were recorded and disseminated throughout the intelligence community.
While the practice is controversial, with privacy advocates arguing a warrant should be required, the intelligence agency's operations are legal and widespread – and likely the basis for President Trump's claim that Obama "wiretapped" Trump Tower.
As The Hill explains, ever since reforms in the 1970s after the Watergate scandal, the president does not have the legal authority to directly order a wiretap.
There are two methods by which intelligence agencies currently could eavesdrop – without a warrant – on the communications of a citizen, including Donald Trump. The Foreign Intelligence Surveillance Act (FISA) permits spying on foreigners within U.S. borders. While it is also permitted to spy on a U.S. citizen under this ruling, Justice Department officials would need to demonstrate to the court that the subject of the surveillance was acting as an agent of a foreign entity.
While James Clapper, former director of national intelligence, testified this past weekend that there was not a FISA warrant in place on Trump or his team, other reports hint at the possibility that courts did allow the FBI to keep tabs on two Russian banks. So, should any of Trumps partners have had dealings with the targets of the FBI's investigation, those details would have been gathered legally and shared among the intelligence agencies.
Another less common legal proceeding, known as 12333, or "twelve triple-three," manages U.S. intelligence-gathering offshore. It authorizes the attorney general to permit 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," according to The Hill.
The National Security Agency can upload that intercepted intelligence to an online repository through which other intelligence agencies can search.
The consensus among surveillance experts is that the most likely explanation for Trump's claim is that his communications were captured by the intelligence agencies working legally through a FISA court order. That assumes that the surveillance actually happened of course. In a topsy-turvy world of facts and alternative facts, it is hard to tell reality from fiction.
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Digital Forensics/Information Security/Information Technology