Electronic Surveillance on Public Soars; Congress Shirks Oversight Responsibility

DoJ email and Internet snooping increased 361% between 2009 and 2011

By Dave Gahary

If any American was still foolish enough to believe that the United States is still a democracy protected by the supreme law of the land, the U.S. Constitution, documents handed over last week to the American Civil Liberties Union (ACLU) by the U.S. Department of Justice (DoJ) should put those notions to rest. The government files “reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.”


Although “Congress requires that the attorney general submit annual reports to Congress on the Justice Department’s use of these devices,” “the Justice Department repeatedly failed to submit annual reports to Congress between 2000 and 2008 (submitting them instead as “document dumps” covering four years’ worth of surveillance in 2005 and 2009).”

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And while average Americans are being spied on by their own government, you can forget about the surveillers being surveilled by our public servants in Congress. According to the ACLU’s findings, “even when the Justice Department does turn over the reports, they have disappeared ‘into a congressional void.’”

Incredibly, states the ACLU, “Congress has done nothing at all to inform the public about the federal government’s use of these invasive surveillance powers. Rather than publishing the reports online, they appear to have filed them away in an office somewhere on Capitol Hill.”

It took months of litigation and a Freedom of Information Act (FOIA) request by the ACLU to pry the files from the hands of the DoJ. The ACLU, founded in 1920, uses litigation, lobbying, and community education “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” FOIA, originally signed into law by Lyndon B. Johnson on July 4, 1966, “allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government,” with nine exemptions.

The released documents “are the attorney general’s 2010 and 2011 reports on the use of ‘pen register’ and ‘trap and trace’ surveillance powers,” which “show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications.”

A pen register, whose original definition was created in the 1984 Electronic Communications Privacy Act (ECPA) and amended in the 2001 USA PATRIOT Act, is a “device which records or decodes electronic or other impulses which identify the numbers called or otherwise transmitted on the telephone line to which such device is dedicated.”

A trap and trace device is a “device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication.” It’s basically a high-tech Caller ID.

Basically, a pen register would record all outgoing phone numbers and a trap and trace device would record all incoming phone numbers.

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Although these devices do not access the contents of the communications surveilled, this “still includes the phone numbers of incoming and outgoing telephone calls and the time, date, and length of those calls.” On the Internet side, “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.”

Ominously, as the ACLU reports, “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.”

The files received by the ACLU “document an enormous increase in the Justice Department’s use of pen register and trap and trace surveillance.” Incredibly, “between 2009 and 2011 the combined number of original orders for pen registers and trap and trace devices used to spy on phones increased by 60%, from 23,535 in 2009 to 37,616 in 2011.”

To put this in perspective, “the number of people whose telephones were the subject of pen register and trap and trace surveillance more than tripled. In fact, more people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.”

The ACLU warns that “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. As a result, the reports likely reveal only a small portion of the use of this surveillance power.”

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In fact earlier in the year, The New York Timesreported 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.”

Amazingly, all of our public servants in Congress are doing absolutely nothing while every American’s civil liberties are slowly chipped away, like the proverbial frog in the pot of boiling water, except one.

Congressman Jerrold Nadler (D-N.Y.) introduced a bill to amend the ECPA “to reflect advances in technology that have taken place since the law was passed over twenty-five years ago.”

H.R. 6339, the Electronic Communications Privacy Act Modernization Act of 2012 “addresses all of the major problems with the current reporting requirements for pen register and trap and trace surveillance,” and “would expand the reporting requirement to apply to all federal agencies, as well as state and local law enforcement.”

Sadly, it has only one co-sponsor and a very slim chance of becoming law.

Dave Gahary, a former submariner in the U.S. Navy, is the host of AFP’s ‘Underground Interview’ series.

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