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ACLU: Electronic surveillance by US agencies skyrocketing

The civil rights group calls on Congress to require more judicial oversight on pen register and trap-and-trace orders

U.S. law enforcement surveillance of email and other Internet communication has skyrocketed in the last two years, according to data obtained by the American Civil Liberties Union.

The number of so-called pen register and trap-and-trace orders obtained by federal law enforcement agencies has increased 361 percent between 2009 and 2011, the ACLU said. The U.S. Department of Justice released the data to the ACLU after the civil rights group sued the agency under the Freedom of Information Act.

Pen registers capture outgoing data from a surveillance subject, while trap-and-trace orders capture incoming data, including the addresses of email messages who the subject is talking with on instant messages. The two types of surveillance are not supposed to record the contents of conversations.

Including the targets of telephone surveillance, "more people were subjected to pen register and trap-and-trace surveillance in the past two years than in the entire previous decade," Naomi Gilens, a legal assistant with the ACLU's Speech, Privacy, and Technology Project, wrote in a blog post.

U.S. law enforcement agencies obtained about 250 pen register orders for email and Internet communications in 2009 and about 200 trap-and-trace orders, the ACLU said. In 2011, U.S. agencies received more than 800 of each order.

A DOJ spokesman noted that a federal judge authorizes each pen register and trap-and-trace order. "As criminals increasingly use new and more sophisticated technologies, the use of orders issued by a judge and explicitly authorized by Congress to obtain noncontent information is essential for federal law enforcement officials to carry out their duty to protect the public and investigate violations of federal laws," said spokesman Dean Boyd.

The ACLU called for the U.S. Congress to require more judicial oversight of pen register and trap-and-trace orders. While wiretap orders need a judge to approve a warrant, pen register and trap-and-trace orders require agencies only to submit a certification to a court saying they seek information relevant to an ongoing criminal investigation.

In addition, Congress should put more pressure on the DOJ to release the surveillance reports. The DOJ is supposed to release an annual report on the use of these surveillance devices, but the ACLU and other groups have only obtained the reports after Freedom of Information Act requests, or, in this case, a lawsuit, Gilens wrote.

The DOJ did release the 2010 and 2011 reports to Congress, but lawmakers didn't release them to the public, she added.

"Unfortunately, Congress has done nothing at all to inform the public about the federal government's use of these invasive surveillance powers," she wrote. "Rather than publishing the reports online, they appear to have filed them away in an office somewhere on Capitol Hill."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is [email protected]


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