Congress Left in Dark on DOJ Wiretaps
• By David Kravets
• Email Author
• February 13, 2012 |
• 6:30 am |
http://www.wired.com/threatlevel/2012/02/congress-in-the-dark/
A Senate staffer was tasked two years ago with compiling reports for a
subcommittee about the number of times annually the Justice Department employed
a covert internet and telephone surveillance method known as pen register and
trap-and-trace capturing.
But the records, which the Justice Department is required to forward to
Congress annually, were nowhere in sight.
That’s because the Justice Department was not following the law and had not
provided Congress with the material at least for years 2004 to 2008. On the
flip side, Congress was not exercising its watchdog role, thus enabling the
Justice Department to skirt any oversight whatsoever on an increasingly used
surveillance method that does not require court warrants, according to Justice
Department documents obtained via the Freedom of Information Act.
The mishap is just one piece of an ever-growing disconnect between Americans’
privacy interests, and a Congress seemingly uncommitted to protecting those
interests.
Pen registers obtain non-content information of outbound telephone and internet
communications, such as phone numbers dialed, and the sender and recipient (and
sometimes subject line) of an e-mail message. A trap-and-trace acquires the
same information, but for inbound communications to a target.
The reports, recently posted on Justice Department website, chronicle a
powerful surveillance tool undertaken tens of thousands of times annually by
the Federal Bureau of Investigation, the Drug Enforcement Agency, the Marshals
Service and the Bureau of Alcohol, Tobacco and Firearms.
The reports show that, from 2004 to 2008, the number of times this wiretapping
method was employed nearly doubled, from 10,885 to 21,152. Judges sign off on
these telco orders when the authorities say the information is relevant to an
investigation. No probable cause that the target committed a crime — the
warrant standard — is necessary.
The Justice Department, beginning in late 2010, has only published the reports
from 2004 to 2009, the year it obtained 23,895 judicial orders to conduct such
surveillance. It did not immediately comment on whether the 2010 and 2011
reports have been compiled and sent to Congress, or explain why the mishap
occurred.
Internet security researcher Christopher Soghoian recently obtained e-mails via
a two-year FOIA process confirm for the first time that Congress was left out
of the loop for at least the years 2004 to 2008. Using FOIA, he and others have
crowbarred from the Justice Department the reports from 1999 to 2009.
“This is an important surveillance tool,” Soghoian said in a telephone
interview. “In addition to showing that DOJ is lazy and not obeying the law,
the most notable thing here is that Congress was asleep at the wheel.”
The handful of government e-mails (.pdf) Soghoian obtained confirm for the
first time that Congress was left out of the loop for at least the years 2004
to 2008. A law review article suggests the same for years 1999 through 2003.
Soghoian provided the nine pages of e-mail to Wired.
They show that, in September of 2009, a staffer for then-Sen. Russ Feingold
sent an e-mail to the Justice Department’s Mark Agrast, the deputy assistant
attorney general for legislative affairs. The staffer, Lara Flint, was seeking
“the last few” reports for a subcommittee of the Senate Judiciary Committee.
“Any help you can provide would be much appreciated,” Flint wrote Agrast.
Three months later, Agrast sent them over to Flint only after Agrast had
learned from Mythili Raman, who was the DOJ’s principal deputy assistant
attorney general for the criminal division, that no reports were filed.
“Although there was an annual reporting requirement, apparently, no one had
been actually fling the annual report,” Raman wrote Argast in a December 2009
e-mail.
Agrast did not immediately return a telephone message from Wired seeking
comment.
To be sure, even had Congress obtained the data, it’s hard to imagine that it
would have mattered.
Consider that the House and Senate punted in May on revising the controversial
Patriot Act adopted in the wake of 9/11. Congress extended three expiring spy
provisions for four years without any debate.
The three provisions extended included:
• The “roving wiretap” provision allows the FBI to obtain wiretaps from
a secret intelligence court, known as the FISA court (under the Foreign
Intelligence Surveillance Act) without identifying the target or what method of
communication is to be tapped.
• The “lone wolf” measure allows FISA court warrants for the electronic
monitoring of a person for any reason — even without showing that the suspect
is an agent of a foreign power or a terrorist. The government has said it has
never invoked that provision, but the Obama administration said it wanted to
retain the authority to do so.
• The “business records” provision allows FISA court warrants for any
type of record, from banking to library to medical, without the government
having to declare that the information sought is connected to a terrorism or
espionage investigation.
The Electronic Communications Privacy Act is the law that requires the DOJ’s
pen-register reporting. It turned 25 years old in October.
Another feature of that law had once protected Americans’ electronic
communications from the government’s prying eyes, but it has become so woefully
outdated that it now grants the authorities nearly carte blanche powers to
obtain Americans’ e-mail stored in the cloud, such as in Gmail or Hotmail —
without a court warrant.
Congress has shown no interest in amending the law to afford Americans their
privacy, despite calls from some of the nation’s largest tech companies and
civil rights groups to do so.
In October, Vermont Sen. Patrick Leahy, the Democratic chairman of the powerful
Senate Judiciary Committee who had originally sponsored ECPA during the Ronald
Reagan administration, promised to hold hearings on ECPA reform before his
committee by year’s end. He never called a hearing, despite saying “this law is
significantly outdated and outpaced by rapid changes in technology.”
As Soghoian sees it, none of this is surprising.
“Privacy is a hot topic,” he said. “Congress is in the dark.’
---
Just because i'm near the punchbowl doesn't mean I'm also drinking from it.
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