Justice Department’s Warrantless Spying Increased 600 Percent in Decade

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The Jus­tice Depart­ment use of war­rant­less inter­net and tele­phone sur­veil­lance meth­ods known as pen reg­is­ter and trap-and-trace has explod­ed in the last decade, accord­ing to gov­ern­ment doc­u­ments the Amer­i­can Civ­il Lib­er­ties obtained via a Free­dom of Infor­ma­tion Act claim.

Source: Amer­i­can Civ­il Lib­er­ties Union

Pen reg­is­ters obtain, in real time, non-con­tent infor­ma­tion of out­bound tele­phone and inter­net com­mu­ni­ca­tions, such as phone num­bers dialed, and the sender and recip­i­ent (and some­times sub­ject line) of an e‑mail mes­sage. A trap-and-trace acquires the same infor­ma­tion, but for inbound com­mu­ni­ca­tions to a tar­get. No prob­a­ble-cause war­rant is need­ed to obtain the data. Judges are required to sign off on these orders when the author­i­ties say the infor­ma­tion is rel­e­vant to an inves­ti­ga­tion.

In 2001, the DoJ issued only 5,683 report­ed “orig­i­nal orders.” (.pdf) Fast for­ward to 2011, the lat­est year for which data is avail­able, the num­ber sky­rock­et­ed to 37,616 — a more than six­fold increase. Though these can be used to track e‑mail, the vast major­i­ty are used to get infor­ma­tion on mobile phone users’ phone calls and texts.

Accord­ing to the ACLU:

Because these sur­veil­lance pow­ers are not used to cap­ture tele­phone con­ver­sa­tions or the bod­ies of emails, they are clas­si­fied as ‘non-con­tent’ sur­veil­lance tools, as opposed to tools that col­lect ‘con­tent,’ like wire­taps. This means that the legal stan­dard that law enforce­ment agen­cies must meet before using pen reg­is­ters is low­er than it is for wire­taps and oth­er con­tent-col­lect­ing tech­nol­o­gy. Specif­i­cal­ly, in order to wire­tap an American’s phone, the gov­ern­ment must con­vince a judge that it has suf­fi­cient prob­a­ble cause and that the wire­tap is essen­tial to an inves­ti­ga­tion. But for a pen reg­is­ter, the gov­ern­ment need only sub­mit cer­ti­fi­ca­tion to a court stat­ing that it seeks infor­ma­tion rel­e­vant to an ongo­ing crim­i­nal inves­ti­ga­tion. As long as it com­pletes this sim­ple pro­ce­dur­al require­ment, the gov­ern­ment may pro­ceed with pen reg­is­ter or trap and trace sur­veil­lance, with­out any judge con­sid­er­ing the mer­its of the request.

Even more alarm­ing, the lat­est fig­ures — which were for years 2010 and 2011 — open only a tiny win­dow into the U.S. sur­veil­lance soci­ety.

Con­sid­er that last year mobile car­ri­ers respond­ed to a stag­ger­ing 1.3 mil­lion law enforce­ment requests — which come from fed­er­al, state and local police, as well as from admin­is­tra­tive offices – for sub­scriber infor­ma­tion, includ­ing text mes­sages and phone loca­tion data. That’s accord­ing to data pro­vid­ed to Con­gress that was released in July.

The nation’s major phone providers said they were work­ing around the clock and charg­ing mil­lions in fees to keep up with ever-grow­ing demands.

AT&T, the nation’s sec­ond-largest mobile car­ri­er, told Con­gress that it had received 63,100 sub­poe­nas — no judi­cial over­sight required — for cus­tomer infor­ma­tion in 2007. That more than dou­bled to 131,400 last year. By con­trast, AT&T report­ed 36,900 court orders for sub­scriber data in 2007. That num­ber grew to 49,700 court orders last year, a weak growth rate com­pared to the dou­bling of sub­poe­nas in the same peri­od.

Not sur­pris­ing­ly, the num­ber of peo­ple affect­ed by such orders has jumped as well – con­sid­er the below chart on the num­ber of peo­ple who the DoJ got infor­ma­tion about using trap-and-traces and pen reg­is­ters.

All of this only con­cerns dis­closed mon­i­tor­ing. The Elec­tron­ic Fron­tier Foun­da­tion, in ongo­ing lit­i­ga­tion, claims the Nation­al Secu­ri­ty Agency, with the help of the nation’s tele­coms, is hijack­ing all elec­tron­ic com­mu­ni­ca­tions.

The Jus­tice Depart­ment, mean­while, filed the lat­est pen reg­is­ter and trap-and-trace reports for 2010 and 2011 with Con­gress, which the law requires. But the Jus­tice Depart­ment refused to release the num­bers pub­licly and did so only after the ACLU sued.

Source:  http://www.wired.com/threatlevel/2012/09/warrantless-surveillance-stats

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