DOJ pen register and trap and trace surveillance sharply up

Justice Department reliance on pen register and trap and trace methods of surveillance has grown exponentially when it comes to email and web surfing, and has affected more telephone users over the past 2 years than over the entire previous decade, concludes the American Civil Liberties Union in an analysis of departmental reports obtained through the Freedom of Information Act.

The ACLU sued under FOIA to obtain DOJ annual reports on pen registers and trap and trace. Numbers in the reports show such surveillance of email and web surfing remaining relatively rare, but increasing 361 percent between 2009 and 2011 to around 850 yearly authorizations for each method in 2011.

Pen register surveillance authorization permits federal law enforcement to monitor who and when an individual contacts through a communications network, but not the content of the message itself. Trap and trace allows law enforcement to also record the identity and time of those making incoming communications.

Because that surveillance is legally not a "search," the threshold for obtaining judicial authorization to start it is much lower than for gaining a warrant to look at the actual content of messages. Federal (or state) attorneys only need certify that the information "likely to be obtained is relevant to an ongoing criminal investigation being conducted."

Justice report data shows that the combined number of original orders for pen registers and trap and trace devices used on phones increased from 23,535 in 2009 to 37,616 in 2011, a growth of 60 percent. Approximately 90,000 domestic individuals were under pen register or trap and trace surveillance in 2011, the ACLU analysis states.

ACLU attorneys argue that the distinction between content and network connection data is a false one, citing a 2009 Massachusetts Institute of Technology study that accurately predicted the sexual orientation of gay men based on their Facebook friends.

For more:
- go to the ACLU analysis

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