U.S. Law Enforcement Agencies Increase Warrantless Electronic Snooping

Data obtained by the ACLU through litigation shows pen register and trap-and-trace orders jumped by more than 14,000 between 2009 and 2011.

U.S. law enforcement snooping of email and Internet communications has increased dramatically during the last two years, according to information obtained by the American Civil Liberties Union.

After months of litigation, the civil rights group was able to get information about the number of pen register and trap-and-trace orders issued by federal law-enforcement agencies between 2009 and 2011. According to the figures, the number of orders jumped from 23,535 in 2009 to 37,616, an increase of 60 percent.

"Pen register and trap-and-trace devices are powerfully invasive surveillance tools that were, 20 years ago, physical devices that attached to telephone lines in order to covertly record the incoming and outgoing numbers dialed," blogged Naomi Gilens, legal assistant with the ACLU’s Speech, Privacy, and Technology Project. "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," she explained. "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)," she added.

During that past two years, some of the increase in pen register and trap-and-trace orders has impacted email and network communications. While this type of Internet surveillance tool remains relatively rare, its use is increasing exponentially, Gilens wrote. According to the figures, the number of authorizations issued by the Justice Department to use these devices on individuals' email and network data has increased 361 percent between 2009 and 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," Gilens noted. "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."

Gilens argued that the legal standard for pen registers is lower than for wiretaps because they are not used to capture actual telephone conversations or the content of emails.

"Specifically, in order to wiretap an American’s phone, the government must convince a judge that it has sufficient probable cause and that the wiretap is essential to an investigation," she noted. "But for a pen register, the government need only submit certification to a court stating that it seeks information relevant to an ongoing criminal investigation. As long as it completes this simple procedural requirement, the government may proceed with pen register or trap and trace surveillance, without any judge considering the merits of the request. As one court noted, the judicial role is purely “ministerial in nature.”

"In every instance cited here, a federal judge authorized the law enforcement activity," a DOJ spokesperson said in a statement. "As criminals increasingly use new and more sophisticated technologies, the use of orders issued by a judge and explicitly authorized by Congress to obtain non-content information is essential for federal law enforcement officials to carry out their duty to protect the public and investigate violations of federal laws."