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There are two ways to obtain a wiretap - also known as electronic surveillance - on U.S. persons (citizens and permanent residents), and both include the courts. For criminal investigations, the FBI can seek a warrant under Title III of the U.S. criminal code by showing a federal court that there is probable cause to believe the target has engaged, or is engaging in, criminal activity. This is a fairly high standard because of a strong presumption in favor of our Fourth Amendment right to privacy, and requires a showing that less intrusive means of obtaining the same information aren't feasible.

The standard for electronic surveillance for foreign intelligence purposes, though, is a little lower. This is because when it comes to national security, as opposed to criminal prosecutions, our Fourth Amendment rights are balanced against the government's interest in protecting the country. The Foreign Intelligence Surveillance Act (FISA) allows the FBI to get a warrant from a secret court, known as the Foreign Intelligence Surveillance Court (FISC), to conduct electronic surveillance on U.S. persons if they can show probable cause that the target is an "agent of a foreign power" who is "knowingly engag[ing]...in clandestine intelligence activities." In other words, the government has to show that the target might be spying for a foreign government or organization.

But even under this standard, it's not like the FBI can just decide to stop by a FISC to get a FISA warrant after going through the McDonald's drive-thru for lunch. To even begin the process leading to a FISA, the FBI has to follow several steps outlined in the Attorney General Guidelines, which govern FBI investigations. First, the FBI has to conduct a "threat assessment" in order to establish grounds for even opening an investigation on potential FISA subjects. If a threat exists, the FBI must then formally open an investigation into possible foreign intelligence activity.

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