New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability. The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power.  (Our original Freedom of Information Act request and our legal complaint are online.) Pen register and trap and trace devices 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. Today, no special equipment is required to record this information, as interception capabilities are built into phone companies’ call-routing hardware. Pen register and trap and trace devices now generally refer to the surveillance of information about—rather than the contents of—communications. Pen registers capture outgoing data, while trap and trace devices capture incoming data. This still includes the phone numbers of incoming and outgoing telephone calls and the time, date, and length of those 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).
Electronic Surveillance Is Sharply on the Rise
The reports that we received document an enormous increase in the Justice Department’s use of pen register and trap and trace surveillance. As the chart below shows, 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.

During that same time period, 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.

During the past two years, there has also been an increase in the number of pen register and trap and trace orders targeting email and network communications data. While this type of Internet surveillance tool remains relatively rare, its use is increasing exponentially. The number of authorizations the Justice Department received to use these devices on individuals’ email and network data increased 361% between 2009 and 2011.

The sharp increase in the use of pen register and trap and trace orders is the latest example of the skyrocketing spying on Americans’ electronic communications. 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...more