New FOIA Request Seeks Stats on Justice Department Surveillance

[Cross-posted from ACLU's blog of rights]

Today the ACLU filed a Freedom of Information Act (FOIA) request with the Justice Department asking it to make public how frequently it uses surveillance tools called pen registers and trap and trace devices to intercept Americans’ communications. These devices make it possible for the government to access the to/from lines of emails, the telephone numbers people dial as well from which they receive calls, and the IP addresses of the websites they visit.

Needless to say, Americans have a strong interest in understanding how frequently and under what circumstances their communications are the targets of pen registers and trap and trace devices. The people we communicate with and the web pages we choose to visit can reveal a great deal about us, including the identities of our close friends and associates and what topics interest us when we engage in private sessions of reading and research. After all, a few years ago MIT students conducted a study claiming that they could predict with great certainty whether someone is gay based on analyzing their Facebook friends. The context is different, but the point is that knowing someone’s social network can be very revealing.

In fact, the Justice Department is legally mandated to compile statistics about how frequently it uses pen registers and trap and trace devices and submit them to Congress, but it has repeatedly failed to live up to that obligation. In the 1980s Congress passed a law requiring the Justice Department to submit a report every year to Congress about its use of these devices.  Unfortunately, the Justice Department regularly violates this law. As David Kravets recently reported on the Wired Threat Level blog, “the Justice Department was not following the law and had not provided Congress with the material at least for years 2004 to 2008.” (The Wired story relied in large part on government documents obtained by Internet researcher and transparency advocate Chris Soghoian.) In 2009, the government made reports for those years available to the public.

But what about 2010 and 2011? Did the Justice Department make the required disclosure for those years? We have no idea. One purpose of our new request to the Justice Department is to answer that question.

But more than that, we think this information should be available to the public and not just members of Congress. The hundreds of millions of Americans who rely on the telephone and internet to reach out to friend and family and work associates should have a full understanding of how the government uses its surveillance authority to intercept our communications.

We filed our request today and the Justice Department has 20 days to respond. Stay tuned for more.

Sunday Dialog on Anonymity and Incivility

The Times chose Anonymity and Incivility as the topic for one of its Sunday Dialog pieces, and included a letter from me as one of the responses.  

If I'd had more space, I would also have pointed out that unless you are a computer whiz, there is no such thing as anonymous speech on the Internet.  While you may choose to adopt the screen name Mark Twain, anyone with a court order can force the company that provides you with internet access to reveal that your real name is Samuel Gompers—and thereby hold you accountable for any libelous speech you may have uttered.

Moreover, the Internet is the greatest and most democratic medium for free expression available to us.  The ability to use a pseudonym has been an American value since the Federalist Papers were penned under the name Publius.  Much will be lost if the powerful companies that moderate most online discourse eradicate the ability to engage in anonymous speech.

Of the letters that were published, I found myself particularly moved by those from people who comment frequently online, and yet say they would not feel comfortable doing so if  they were required to use their real names in all cases.

It's all possible now

Today's New York Times ran an article featuring highlights from the hacker conference Defcon.  One of the items they discussed is an invention called the WASP:

"It’s a remote-controlled plane with a computer in its belly that can fly up to 400 feet above the ground, snoop quietly on wireless networks below and attack one if it wants to. It can also pretend to be a GSM cellphone tower, eavesdropping on calls and text messages that pass through."

This is another reminder that technology enables surveillance today that would not have occurred to most of us a decade ago.  That makes the protections of laws all the more important.

Microdrones, not science fiction anymore

Today's New York Times reports on the development of microdrones, which it characterizes as "poised to alter warfare."  It describes a prototype drone called the hummingbird, which is only 4 inches long, "can fly at speeds up to 11 miles per hour, hover and perch on a windowsill."

While today drones may be altering warfare, soon they may have a similarly transformative effect on local policing.  The Washington Post discussed this possibility at length in January, when it highlighted the use of drones by the Texas Department of Public Safety.

Now is a good time to begin thinking about how drones should be regulated to protect privacy.  While safety concerns have led the Federal Aviation Administration to place sharp limits on the ability of local law enforcement agencies to fly drones, it seems unlikely this near-total ban will last for much longer.  Drones can be powerful tools for surveillance, particularly given the increasingly sophisticated nature of camera technology.  Drones can be equipped with cameras that can zoom in and see far more than the human eye can see, and with cameras that can take thermal images.  Now that we can no longer dismiss microdrones as the stuff of science fiction, we should work to develop guidelines on the circumstances under which local law enforcement agencies will be permitted to use this new and powerful tool.

Surveillance Programs Must Not Be Kept Secret

Today there are x-ray vans that can see through walls and clothing. We know little about which law enforcement agencies are purchasing these vans, or how they are being used. The same can be said about unmanned flying "drones" capable of aerial surveillance.

Read the rest of my blog post on the ACLU's Blog of Rights.