According to new data published Monday by the Washington Post, secret law enforcement requests for electronic surveillance have increased significantly in federal courts in the last decade—but only 1 in 1,000 of those these requests has become publicly available.
The Washington Post’s data looked at two federal courts—one in Northern Virginia and one for the District of Columbia. According to the Post’s report, these two courts are some of the most active in the country and are the only ones to disclose any surveillance information.
The data shows that between 2004 and 2013, electronic surveillance requests by law enforcement in the D.C. federal court rose 300 percent. The report also noted that nationwide, the Justice Department obtained a total 42,000 of these surveillance orders for criminal investigations in 2013. In that year alone, the federal court for the District of Columbia, the local U.S. attorney’s office submitted 564 requests for electronic —more than double the number of requests made in 2012. (Of the 235 requests from 2012, just three have been unsealed.) In the federal court for the Eastern District of Virginia, which covers Northern Virginia, electronic surveillance requests have increased from 305 in 2011 to a predicted 1,800 in 2016.
These requests are governed by the Electronic Communications Privacy Act of 1986, which is meant to protect wire, oral, and electronic communications. The 1986 law distinguished between stored email communications and stored voicemail communication, the latter of which was governed by the federal wiretap statute. However, since the ECPA’s passage, subsequence amendments—like the Communications Assistance for Law Enforcement Act in 1994, the USA Patriot Act in 2001, the Patriot reauthorization bill enacted in 2006, and 2008 amendments to the Foreign Intelligence Surveillance Act—have weakened restrictions on law enforcement’s access to electronic data and updated the laws to incorporate new forms of technology. The FISA was also used to justify the government surveillance revealed by Edward Snowden in 2014, and Georgetown University Law Center professor Laura Donohue wrote in the Harvard Journal of Law and Public Policy that certain aspects of the FISA violate the Fourth Amendment protection against unlawful searches.
One of the more notable amendment to the now-outdated ECPA is the legalization of the roving wiretap, which follows the object of surveillance through all of his or her electronic communications.
The requests from the both courts ask for access to data like sender and recipient. information, time stamps and durations of calls, and device identification numbers, but not the content of the messages exchanges. Justice Department spokesman Peter Carr told the Washington Post that the DOJ typically uses search warrants to obtain the content of emails.
The data release comes at a time of increased anxiety over secret government internet surveillance. Earlier this month, Reuters reported that Yahoo Inc. had built a software to scan users’ incoming emails for information provided by U.S. intelligence officials. Facing backlash, the general counsel of Yahoo sent a letter to Director of National Intelligence James Clapper on Oct. 19 requesting more transparency into the details of the FBI’s investigation.
