Thursday, August 04, 2011

Warrantless "emergency" surveillance of Internet communications by DOJ up 400%

According to an official DOJ report, the use of "emergency", warrantless requests to ISPs for customer communications content has skyrocketed over 400% in a single year.

The 2009 report (pdf), which I recently obtained via a Freedom of Information Act request (it took DOJ 11 months (pdf) to give me the two-page report), reveals that law enforcement agencies within the Department of Justice sought and obtained communications content for 91 accounts. This number is a significant increase over previous years: 17 accounts in 2008 (pdf), 9 accounts in 2007 (pdf), and 17 accounts in 2006 (pdf).


When Congress passed the Electronic Communications Privacy Act in 1986, it permitted law enforcement agencies to obtain stored communications and customer records in emergencies without the need for a court order.

In such scenarios, a carrier can (but is not required to) disclose the requested information if it, "in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency." Typically, belief means that a police officer states that an emergency exists.

With the passage of the USA PATRIOT Improvement and Reauthorization Act of 2005, Congress created specific statistical reporting requirements for the voluntary disclosure of the contents of subscriber communications in emergency situations. In describing his motivation for introducing the requirement, Senator Lungren stated that:

"I felt that some accountability is necessary to ensure that this authority is not being abused… This information [contained in the reports] I believe should be highly beneficial to the Committee, fulfilling our oversight responsibility in the future … this is the best way for us to have a ready manner of looking at this particular section. In the hearings that we had, I found no basis for claiming that there has been abuse of this section. I don't believe on its face it is an abusive section. But I do believe that it could be subject to abuse in the future and, therefore, this allows us as Members of Congress to have an ability to track this on a regular basis."

The current reports are deeply flawed

The emergency request reports are compiled and submitted by the Attorney General, and only apply to disclosures made to law enforcement agencies within the Department of Justice. As such, there are no statistics for emergency disclosures made to other federal law enforcement agencies, such as the Secret Service, as well as those made to state and local law enforcement agencies.

Furthermore, although 18 USC 2702 permits both the disclosure of the content of communications, as well as non-content records associated with subscribers and their communications (such as geo-location data), Congress only required that statistics be compiled for the disclosure of communications content. It is not clear why Congress limited the reports in this way.

Because the reporting requirements do not apply to disclosures made to law enforcement agencies outside the Department of Justice, and do not include the disclosure of non-content communications data and other subscriber records, the reports reveal a very limited portion of the scale of voluntary disclosures to law enforcement agencies.

Likewise, although Congress intended for these reports to assist with public oversight of the emergency disclosure authority, the Department of Justice has not proactively made these reports available to the general public. The reports for 2006 and 2007 were leaked to me by a friend with contacts on the Hill. I obtained the 2008 and 2009 reports via FOIA requests -- and disgracefully, it took DOJ 11 months to provide me with a copy of the 2-page report for 2009.

The emergency requests documented in these reports only scratch the surface

A letter (pdf) submitted by Verizon to Congressional committees in 2007 revealed that the company had received 25,000 emergency requests during the previous year. Of these 25,000 emergency requests, just 300 requests were from federal law enforcement agencies. In contrast, the reports submitted to Congress by the Attorney General reveal less than 20 disclosures for that year. Even though no other service provider has disclosed similar numbers regarding emergency disclosures, it is quite clear that the Department of Justice statistics are not adequately reporting the scale of this form of surveillance. In fact, they underreport these disclosures by several orders of magnitude.

The current reporting law is largely useless. It does not apply to state and local law enforcement agencies, who make tens of thousands of warrantless requests to ISPs each year. It does not apply to federal law enforcement agencies outside DOJ, such as the Secret Service. Finally, it does not apply to emergency disclosures of non-content information, such as geo-location data, subscriber information (such as name and address), or IP addresses used.

As such, Congress currently has no idea how many warrantless requests are made to ISPs each year. How can it hope to make sane policy in this area, when it has no useful data?


Anonymous said...

It should be obvious that Internet surveillance has become a given for all of us! The more advanced technology becomes the more we will be monitored. Deal with it! I personally could care less!

Z. Constantine said...

"I personally could care less!"

Glad to see we're all on the same page here.

Has the federal government's astro-turfing campaign kicked off already?

"Abuse of power" - that's just a conspiracy theory...

bootz15 said...

Stupid "Patriot Act"!! It's creepy, all the spying the government does on its own people without the permission of a judge.

Very great investigation action! Keep up the pressure on government accountability.

Anonymous said...

And to think we used to fear the communists. Just look at our pathetic government now. It's the government vs.the citizens and they started it. We are all guilty and no longer have the authority to be proven innocent. We are all criminals and under constant investigation. If they ever quit shutting us up and showing they will kill us is we disagree, someone may start thinking for themselfves or having their own ideas....and they just can't have that...because we would remove them for being corrupt pieces of crap.

Charles Manson said...

Ahhh Amerika, Land of the jack booted thug we lovingly call "government", home of the oppressed... A land Joe Stalin would be proud to call his own.

"The constitution is just a God damned piece of paper" G. W. Bush

Anonymous said...

Face it the United States is right now a Police State. When was the last time a police "officer" either pulled you for speeding, or even walking down the street, and you asked him a reasonable question and he did not explode in rage? Escalating as much as possible his "interaction" with you into a "resisting arrest without violence" based on nothing, to be rubber stamped by the Judge, some 90% now are ex-prosecutors who wanted the pay raise from like 40k or less to 150k or more being a "Judge" gives them. One sure way to stop being a "Judge" is to start ruling against the illegal activity of the police and convicting people, so you can be guaranteed in the majority of cases how yours, lawyer or not (most plead you guilty after taking your money saying they are going to defend you, come Court Day that all changes and they tell you that you better plea because the Judge does not like trial and will penalize you for asking for one" i.e. a violation of your Constitutional Rights. (Look up the Byrd Case in Florida, and yes she is still on the "bench" in Orlando, FL, but no longer threatens you if you go to trial with the maximum penalty, on which she was reversed, now she just gives it to you without threatening you on the record, she leaves it to your attorney to let you know what she will do to you - -is she lazy or just nuts who knows, she is hateful that anyone who has been in her "courtroom" will find out very fast, in my opinion. Justice American style. There is none. Wake Up. The plan is through draconian DUI laws (phoney arrests etc.) to make all Americans criminals, then how can you criticize your "elected representatives" you are a criminal - - that is if you can still vote, they basically have eliminated the majority of black men from that with bs drug felonies. No, it is too late. As the man said "the revolution will not be televised" in fact he got it wrong, the Fascist Revolution is televised all the time, and praised, and to quote no one less than Warren Buffet: "Yes. There was a class war and my side won". No bs they have the cash and power, numbers mean nothing to them or protests, they have the militarized police and the military ready to make China's crushing of the Democracy Movement look like grade school. Republican, Democrat, Tea Party blah, blah, the game is over. There is no hope, it died with JFK.

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whitebear said...

"Warrantless 'emergency' surveillance of Internet communications by DOJ up 400%"

This is the same Justice Department, under Attorney General Eric Holder. that deliberately misled the American people as to the actual number of stalker victims who reported multiple stalkers during a 12 month survey by DOJ>("Stalking Victimization in the United States" a 2009 Special Report.. Pub # NCJ 224527)

Why would DOJ not want the American people to know the true extent of "multi-stalking"?
Why has DOJ NEVER prosecuted a "multi-stalker" case?
Why does the Office for Victims of Crime (OVC) offer assistance for single stalker victims, but not for stalker victims who report multiple stalkers?
(OVC is part of DOJ)
Does DOJ even consider "multi-stalking" to be a crime?
The actual number of multiple stalker victims could well be as high as 600,000 every year, but DOJ won't even comment on questions relating to "multi-stalking"; nor will the White House

Why is both DOJ and the White House in total denial about this type of stalking?

Unknown said...

I can only find a couple of situations where this would be beneficial, like for the security and surveillance of valuable depositories like fort nox, where plans for a heist may be found in internet chatter.