The ACLU has released documents that show that in the last two years the US Department of Justice has conducted more warrantless electronic surveillance, involving spying on telephones, email and Facebook accounts, than in the preceding decade.
The American Civil Liberties and Union (ACLU) reports that the documents handed over after months of litigation include the attorney general’s 2010 and 2011 reports covering use of “pen register” and “trap and trace” surveillance powers. The documents, according to the ACLU, shows a sharp increase in the use of surveillance tools such as telephone, email, and other Internet communications. The ACLU observed that the surge underscores the need to regulate government’s surveillance power.
"Pen register" and "trap and trace" surveillance involve use of devices that in the 1980s and 1990s were attached to telephone lines and used to secretly record incoming and outgoing numbers. But today, phone companies' call-routing hardware have built-in interception capabilities.
According to the ACLU, pen register and trap and trace surveillance involves collection of information about communications rather than specifically about content of communications. Pen registers capture outgoing data about phone numbers, time, date and length of calls, while trap and trace devices capture similar information about incoming data. However, with the explosion of Internet communication in the first decade of the 21st century, government agencies have now converted the authority they use for monitoring phone calls to intercepting email messages and record instant message conversations.
The Huffington Post reports that the Electronic Communications Privacy Act passed in 1986, empowers the government to collect metadata about calls and emails/instant message. To obtain an order authorizing surveillance, law enforcement agencies only need to file a procedural request with a judge that certifies the information will be used in relation to a criminal investigation.
According to The Huffington Post, the documents released by the ACLU exclude data on terrorism-related investigations and requests from state and local law enforcement. The documents also do not include surveillance by federal agencies independent of the Justice Department, such as the US Secret Service
A chart by the ACLU (see below) shows that between 2009 and 2011 the total number of original orders for pen registers and trap and trace devices increased by 60%, from 23,535 in 2009 to 37,616 in 2011.
Graph showing original orders
The figures for 2011 rise above 40,000 when Internet and email information requests are included, The Huffington Post notes. During the period 2009-2011, the number of people whose telephones came under pen register and trap and trace surveillance more than tripled (see graph below). The ACLU points out that more people came under to pen register and trap and trace surveillance in the past two years than in the previous decade.
Graph showing people affected by pen register and trap and trace surveillance
The past two years have also witnessed an exponential increase in the number of pen register and trap and trace orders that target email and network communications. According to the documents obtained by the ACLU, the number of authorizations the Justice Department obtained to use pen register and trap and trace devices on private email and network data increased between 2009 and 2011 by 361% (see graph below).
Graph showing email and internet authorizations
Chris Soghoian, principal technologist at the ACLU's Speech, Privacy and Technology Project, commented: "We're seeing a massive increase in requests for what as a technologist I would call metadata, so it's not the what you say, but the who you say it to." Soghoian said: "Why are we seeing such a surge? We don't really know. It may be that there's more and more FBI and DEA offices that are discovering the utility of these tools or using them more frequently. Maybe the social networking sites and email providers just didn't provide this information in the past, but now they do -- but what is clear is that the numbers are growing at an alarming rate."
According to Soghoian, what is equally alarming about the pattern is that government is developing new and more sophisticated techniques to analyze emails and social networks.
The Hill reports that the ACLU said the Justice Department submitted the reports to Congress but they were never publicly released. Naomi Gilens of the ACLU's Speech, Privacy and Technology Project, said: "It shouldn’t take a FOIA lawsuit by the ACLU to force the disclosure of these valuable reports. There is nothing stopping Congress from releasing these reports, and doing so routinely."
The Justice Department has, however, defended its activity, saying the orders were legal and necessary. The Huffington Post reports that Dean Boyd, Justice Department spokesman, said, “In every instance cited here, a federal judge authorized the law enforcement activity. As criminals increasingly use new and more sophisticated technologies, the use of orders issued by a judge and explicitly authorized by Congress to obtain non-content information is essential for federal law enforcement officials to carry out their duty to protect the public and investigate violations of federal laws.”
But Soghoian thinks "there's really something at a deep level creepy about the government looking through your communications records, and you never learn that they were doing it."
Dr Rex Dexter's comments on Newsvine expresses the feelings of many Americans: "All of this Digital Spying has been foisted upon us to prevent 'terrorist activities.' yet no arrests are forthcoming... I can't think of anything I don't want read, but more and more it seems the 'wrong opinion' can get you undue attention. Was this the change we voted for?"