Feds’ warrantless surveillance targeted more people in past two years than entire previous decade
By End the Lie
Disturbing new documents from the United States Department of Justice reveal that federal agents are increasingly being given real-time access to the social networking accounts and e-mails of Americans without having to obtain a search warrant.
Unfortunately, this is hardly surprising given that the Obama administration has fought to maintain their warrantless wiretapping powers and similarly declared that cellphone location data is not constitutionally protected.
Given that former employees of the National Security Agency (NSA) have exposed the massive illegal surveillance program going on in our nation, is it really all that surprising to learn of this type of widespread real-time surveillance? I think not.
That being said, the dramatic rise in the numbers is hardly easy to brush aside.
The reports made available by the American Civil Liberties Union (ACLU) were only handed over by the government after the ACLU was forced to sue the Department of Justice and enter into months of litigation.
The documents are the 2010 and 2011 attorney general reports on the use of so-called “pen register” and “trap and trace” surveillance methods, which gather information on communications via Internet, e-mail and telephone.
While these surveillance tools had to be physically installed just twenty years ago, “Today, no special equipment is required to record this information, as interception capabilities are built into phone companies’ call-routing hardware,” according to the ACLU.
The pen registers capture outgoing data about communications (therefore, they supposedly do not collect the actual contents of the communications) while the trap and trace devices capture the incoming data.
In the case of telephones, this includes information about the numbers, dates, times and length of both incoming and outgoing calls.
“But the government now also uses this authority to intercept the ‘to’ and ‘from’ addresses of email messages, records about instant message conversations, non-content data associated with social networking identities, and at least some information about the websites that you visit (it isn’t entirely clear where the government draws the line between the content of a communication and information about a communication when it comes to the addresses of websites),” explains the ACLU.
The documents obtained by the ACLU reveal that the combined number of original orders for trap and trace devices and pen registers increased from 23,535 in 2009 to 37,616 in 2011, an increase of 60 percent.
The numbers get even more troubling when one realizes that the number of people who were actually the subject of surveillance more than tripled.
One of the most shocking revelations is that more people were the target of pen register and trap and trace surveillance in the past two years alone than in the entire previous decade combined.
The past two years have also seen an increase in the number of pen register and trap and trace orders specifically targeting e-mail and network communications data.
The ACLU points out that this specific type of Internet surveillance tool is still used relatively rarely, but the use is increasing exponentially with a 361% increase in authorizations from 2009 to 2011.
They also rightly note that this is just one of many surveillance methods which is rapidly increasing in use with 1.3 million requests for subscriber information sent to mobile phone companies in 2011 alone.
Similarly, an ACLU public records project determined that police departments throughout the United States are using cell phone location data for tracking.
Since pen registers and trap and trace devices are considered “non-content” surveillance tools, the legal standards which must be met before they can be used are significantly lower than “content” surveillance tools like traditional wiretaps.
While the government is supposed to convince a judge that they have probable cause before “content” surveillance is authorized, in the case of a pen register, “the government need only submit certification to a court stating that it seeks information relevant to an ongoing criminal investigation,” according to the ACLU.
The government needs only to complete the incredibly simple procedure in order to obtain the authorization to move forward with pen register or trap and trace surveillance without a judge having to actually look at the merits of the request itself.
One court noted that this minor judicial role is entirely “ministerial in nature.”
The ACLU points out that the division between “content” and “non-content” surveillance is purely imaginary since it “is based on an erroneous factual premise, specifically that individuals lack a privacy interest in non-content information.”
“Non-content information can still be extremely invasive, revealing who you communicate with in real time and painting a vivid picture of the private details of your life,” the ACLU argues.
Indeed, it is quite easy to determine a great deal of information from the so-called non-content information, evidenced by students at MIT being able to create a program which identified gay men based on the sexual preferences of their friends.
Since there is such a low legal standard in place for pen register and trace and trace device authorizations currently, the government can freely use these quite powerful surveillance tools with little to no oversight.
In an attempt to maintain a rough semblance of accountability, Congress requires the attorney general to submit an annual report to Congress outlining the Department of Justice’s use of these devices.
Yet the Department of Justice simply ignores this requirement and has routinely failed to submit reports as documented by Chris Soghoian.
This flagrant disregard of their duties led to the Electronic Privacy Information Center (EPIC) being forced to actually pen a letter of complaint in 2009 to Senator Patrick Leahy.
Even when the Department of Justice actually does release their reports, they tend to disappear “into a congressional void,” as Professor Paul Schwartz put it, instead of actually making its way to the public.
Indeed, the 1999-2003 reports had to be obtained by Freedom of Information Act (FOIA) request by the Electronic Frontier Foundation (EFF) and the 2004-2009 reports were obtained by Soghoian through the same process.
It seems to be getting harder and harder to obtain the reports seeing as the ACLU had to not only file a FOIA request but also file a lawsuit in order to obtain the 2010 and 2011 reports.
I think it is quite clear just how far our nation has gone down the road to tyranny when we see exponential increases in surveillance like this as well as the Obama administration’s open claims to the right to assassinate Americans and hold us indefinitely without charge or trial.
It’s quite sad but this is hardly shocking to me and compared to some of what the government does nowadays it is almost acceptable, and that is truly tragic.
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