ACLU graph showing escalation in surveillance

Newly released documents from the American Civil Liberties Union (ACLU) show warrantless surveillance of Americans’ electronic communications by federal law enforcement agencies through pen register and trap devices sharply increased. Notably, because of how easy it is for government to intercept communications, government now regularly exercises the authority to intercept “to” and “from” addresses of email messages, collect instant message conversation records and gather what the ACLU refers to as “non-content data associated with social networking identities.”

From 2009 to 2011, the “combined number of original orders for pen registers and trap and trace devices used to spy on phones” from the Justice Department increased 60%. The number rose from 25,535 to 37,616. And, during this period, the ACLU found, “More people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.” The number of people, who had their telephones subjected to this kind of surveillance tripled.

The ACLU examined the documents and found an increase in orders “targeting email and network communications data.” Though the use of this surveillance may be rare, it increased exponentially—361% between 2009 and 2011.

“Pen register and trap and trace devices,” the ACLU informs in a post on their website,  “are powerfully invasive surveillance tools that were, twenty years ago, physical devices that attached to telephone lines in order to covertly record the incoming and outgoing numbers dialed.” These devices are now typically used to monitor information about communications. Pen register devices help government collect outgoing data while trap and trace devices help government collect incoming data—including phone numbers of incoming/outgoing calls and the time, data and length of calls.

To put the findings into further context, the ACLU notes, “Earlier this year, the New York Times reported that cellphone carriers received 1.3 million demands for subscriber information in 2011 alone. And an ACLU public records project revealed that police departments around the country large and small engage in cell phone location tracking.”

The findings further prove surveillance of US citizens is sharply escalating. It also shows that, as surveillance increases, so too does state secrecy because the national security state does not want the public to know the extent to which it is spying on their everyday communications is increasing.

The ACLU had to file a Freedom of Information Act lawsuit to force the release of documents showing the use of this surveillance had risen. There are “pen register reporting requirements,” which Congress passed, to ensure some modicum of transparency. Congress could release the reports on a routine basis. The reports could go up online. Instead, Congress, the ACLU suggests, have apparently “filed them away in an office somewhere on Capitol Hill.”

The Justice Department (specifically, the attorney general) is subject to a requirement by Congress to submit annual reports on the use of pen register and trap and trace devices. The reports are to include, as the ACLU details:

The period of interceptions authorized by each order and the number and duration of any extensions of each order

The specific offenses for which each order was granted

The total number of investigations that involved orders

The total number of facilities (like phones) affected

The district applying for and the person authorizing each order

But, between 2000 and 2008—the two terms that President George W. Bush was in the White House, no annual reports were submitted to Congress. Paul F. Schwartz, a professor of law at UC Berkeley, reported in 2008, “[T]he reports do not appear to have been made annually, but as one document dump with five years of reports in November 2004. The reports also fail to detail all of the information that the Pen Register Act requires to be shared with Congress.”

Additionally, author of Surveillance or Security?: The Risks Posed by New Wiretapping Technologies, Susan Landau, detailed in her book how data released in pen register reports has often been:

…[M]issing required information, such as crime involved and district in which the interception occurred. This makes it impossible to connect a surveillance to a particular crime and leaves no way to determine the effectiveness of pen registers and trap and traces that the DoJ has been increasingly performing…

Meaning, it is hard to tell if all this snooping actually significantly aids law enforcement in solving or reducing crime. Also:

…While historical data from the 1990s shows that the total of pen registers and trap-and-trace orders was somewhere between ten and fifty times the number of Title III warrants, the recent numbers released to Congress show a sharp break from that pattern with much lower numbers of pen registers and trap and traces than expected. In addition to pure pen register and trap and trace, law enforcement has also been using “hybrid” orders combining past and future user locations in a single request. In 2009, the four major wireless carriers have been receiving roughly twenty thousand orders annually for such hybrid data. Thus it is likely that underreporting has been occurring…

All of which suggests the increase in surveillance may be sharper than what data in the released documents indicates.

What is in the documents is the bare minimum amount of details the federal government is required to release to the public. According to the ACLU:

…Even though we now have the reports, much remains unknown about how the government is using these surveillance tools. Because the existing reporting requirements apply only to surveillance performed by the Department of Justice, we have no idea of how or to what extent these surveillance powers are being used by other law enforcement agencies, such as the Secret Service, Immigration and Customs Enforcement, or state and local police…

The legal standard for conducting this surveillance is “lower than it is for wiretaps and other content-collecting technology.” All government has to do is “submit certification to a court” indicating it is seeking data that is relevant to “an ongoing criminal investigation.” This is because the government has convinced judges there is a difference between content/non-content data and spying on non-content data is not invasive like spying on content data. (This would be one way to justify surveillance of those alleged to be part of or connected to WikiLeaks or any other dissident organization challenging the US government.)

Thus, the government is able to exercise secret surveillance.

Kevin S. Bankston of the Electronic Frontier Foundation wrote in a University of San Francisco Law Review article in 2007 that the Justice Department “regularly applies for and receives secret surveillance authority from magistrate judges.” The authority is based on “legal arguments that are dubious at best and deceptive at worst.” It has “achieved this erroneous authority through reliance on often-unspoken and legally unsound arguments that are deployed for years at a stretch without being subjected to meaningful judicial scrutiny.”

He described case studies, which raised the following questions: “How many thousands of illegal and unconstitutional surveillances have been authorized in this manner? What other types of unlawful surveillance are federal prosecutors asking for and obtaining the permission to conduct? And, as one newly vigilant and obviously frustrated magistrate [asked], ‘How long has this been going on?’”

Without courts willing to challenge the legality of operations by the pervasive and growing surveillance state, without a Congress willing to be the check on executive power that it is supposed to be, there is no reason to believe the increase in monitoring and spying will reverse. And, worse, how Americans are being monitored and spied upon will become increasingly difficult to figure out as the secrecy regime the federal government imposes on the public becomes more entrenched and people become more subservient to officials, who claim citizens should not be privy to how their government is watching their everyday activities.