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October 3, 2012

Warrantless Electronic Surveillance on Rise

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You may have less privacy than you think.

As the use of cellphones, e-mail and social media continues to rise in the U.S., so to does the interest in such information by law enforcement officials, says the American Civil Liberties Union (ACLU).

Government agents still need a warrant to listen in on your phone calls or to read your e-mails and text messages. They don’t, however, need a warrant to track who you call, who calls you, who you text or e-mail and who messages you. Also, posts on social media sites like Facebook and Twitter are up for grabs by the authorities.

The use of “pen registers” and trap-and-trace has risen substantially in the past three years, according to U.S. Department of Justice records obtained by the ACLU after  more than seven months, writes the ACLU’s Naomi Gilens in a blog post.

The group’s Freedom of Information Act request in February, was followed by a complaint in U.S. District Court on May 23. The ACLU was forced to seek an injunction to strong-arm agencies under the DOJ — the Criminal Division, Drug Enforcement Administration, FBI, U.S. Marshals Service, Bureau of Alcohol, Tobacco, Firearms and Explosives and Office of Information Policy — to fulfill the request.

Documents released by the Department of Justice (DOJ) last week show between 2009 and 2011, “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,” Gilens writes in her blog post.

Pen registers capture outgoing data, while trap and trace devices capture incoming data. For such orders, officials need only submit the information is relevant. They don’t need a judge’s approval.

Orders for phone traces are up 60 percent while captured e-mail and network communication data surged 361 percent.

While this form of surveillance is dubbed “non-content information” by officials, it can still be invasive, Gilens says.

“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,” her post reads.

“If reviewing your social networking contacts is sufficient to determine your sexuality, as found in an MIT study a few years ago, think what law enforcement agents could learn about you by having real-time access to whom you e-mail, text, and call.”

The Justice Department, however, issued a statement to the media, saying the orders are both legal and necessary.

“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,” said spokesman Dean Boyd.

The Electronic Communications Privacy Act of 1986 (ECPA) needs to be updated, the ACLU says.

In August, Congressman Jerrold Nadler (D-N.Y.) introduced a bill to amend the 26-year-old privacy act so it would reflect the improvements in technology.

The bill would “expand the reporting requirement to apply to all federal agencies, as well as state and local law enforcement. The bill would also shift the responsibility of compiling the reports from the attorney general to the Administrative Office of the United States Courts, which already completes the reporting requirements for the government’s use of wiretaps, and proactively posts those reports on its website each year.”

 

 

 

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