On Dec. 17, 2019, a Foreign Intelligence Surveillance Court (FISA) judge issued what The New York Times described as an "extraordinary public order" criticizing the FBI for misusing the process to obtain warrants for electronic surveillance on an American citizen (refer to In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02). The FISA court was created by the Foreign Intelligence Surveillance Act, hence the term FISA court or FISA judge.

Today's article is a primer on the required procedure for obtaining warrants from the FISA court to install wiretaps and electronic hearing devices in the investigation of certain persons, and a guide to understanding the current allegations that the FBI has misused that procedure to gain permission to use secret electronic surveillance as described in the foregoing order. I will begin with a short background.

When the FBI seeks a warrant to install a wiretap on a private phone, or install a secret listening device in a private home or office, in order to obtain evidence of a crime, the investigative agency must file an application for the warrant with a federal court judge. The initial process for the FISA court is the same as required for obtaining electronic surveillance warrants in federal district courts for criminal investigations. The investigative case agent must file an application for a warrant with a federal judge of that particular court. FISA court judges are federal court judges from across the country sitting by designation. The investigative agent is generally overseen by the relevant U.S. attorney or Department of Justice attorney.