Big increases in electronic surveillance

Documents from the Department of justice, released as a result of Freedom of Information requests, have shown that there has been a big increase in electronic surveillance since 2009. The increase has been in the use of "pen register” and “trap and trace” surveillance powers which gather information about telephone, email and other internet communications. In the case of pen and trace this is information about communications rather than their contents while trap and trace shows who emails are to and from, records of IM conversations and information about websites visited. The number of authorisations expanded by 361% from 2009-1011.

This has been possible because the legal standards for their use are much easier to meet than more invasive surveillance with only a certification sent to court rather than having a judge decide whether the surveillance is necessary. ACLU, and others, worry that even surveillance that does not actually involve seeing the content is an invasion of privacy. Twenty-five years ago it may have been the case that such records would reveal little of someone's private lives but today when we communicate over the internet all the time it builds up a much more complete picture of where we are and what we are doing all the time. ACLU also worries that "we have no idea of how or to what extent these surveillance powers are being used by other law enforcement agencies, such as the Secret Service, Immigration and Customs Enforcement, or state and local police" as the released documents only relate to the Department of Justice.

This laxity of reporting may however be changing as 'the electronic communications privacy act modernization act of 2012' has been introduced by Congressman Jerrold Nadler who argues "This new legislation will ensure that ECPA strikes the right balance between the interests and needs of law enforcement and the privacy interests of the American people." This would expand reporting requirements to all agencies and law enforcement. However if the use of such tapping is widespread and being used more and more reporting requirements may not be enough to halt the increase.

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