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US Rapidly Increased Electronic Surveillance

The US Justice Department has wiretapped the phones of more Americans in the last two years than the entire decade before it, and federal surveillance targeting the Internet usage of US civilians has surged wildly, new FOIA documents reveal.

The American Civil Liberties Union published documents late Wednesday that they received from the Justice Department in response to a Freedom of Information Act request the organization filed earlier this year. According to the papers, certain phone-tapping procedures have increased by 60 percent between 2009 and 2011, and the surveillance of email and other Internet data has been authorized in court by an increase of 361 percent during the same span.

The ACLU asked the Justice Department back in January to supply them with records regarding the annual statistics reports on the use of pen register and trap and trace devices, two methods of surveillance that can target information sent to and from phones, computers and other electronic devices. Now with proof in their hands, the ACLU can conclude again that the government had ramped up its secret surveillance of Americans with concrete evidence from the District Attorney’s office that shows rampant spy programs are targeting more and more US citizens.

Pen register and trap and trade devices, the ACLU acknowledges, are “powerfully invasive surveillance tools” that at one point consisted of physical, hard equipment that attaches to phone lines to intercept communication. Today’s technology allows surveillance to be conducted without attaching actual devices in the same manner, allowing the capturing of correspondence to be that much easier.

The devices are used to capture outgoing and incoming data pertaining to specifics communication, but do not include the actual contents of the discussion. It does, however, mean that any federal agency granted permission to place a pen register or trap and trace device can still see the “to” and “from” fields of email messages sent and received, as well as the time, date, length and numbers involved in phone conversations and records about IP addresses accessed by web browsers and basic instant messaging identification.

“Because these surveillance powers are not used to capture telephone conversations or the bodies of emails, they are classified as ‘non-content’ surveillance tools, as opposed to tools that collect ‘content,’ like wiretaps,” Naomi Gilens of the ACLU’s Speech, Privacy and Technology Project explains. “This means that the legal standard that law enforcement agencies must meet before using pen registers is lower than it is for wiretaps and other content-collecting technology.”

“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 through the telephone and Internet 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,” the ACLU wrote when they filed their FOIA request earlier this year (.pdf). “It is important to Americans' privacy and their ability to feel secure when availing themselves of new communications technologies that they understand the degree to which these technologies are subject to government surveillance.”

In a post published on the ACLU’s website this week, Gilens adds that the only paperwork necessary to tap phones and emails using the technology is a judge’s signature on a certificate that says that investigators believe the information may be relevant to a criminal probe.

“As long as it completes this simple procedural requirement, the government may proceed with pen register or trap and trace surveillance, without any judge considering the merits of the request,” Gilens adds.

In 1995, the United States Court of Appeals for the Eighth Circuit sharply critiques the ease in which these requests can be granted, ruling, “The judicial role in approving use of trap and trace devices is ministerial in nature.”

According to the just-released info, 37,616 pen registers and trap and trace devices were authorized to target the phone calls of Americans in 2011 alone. Barely 5,000 orders were signed in the year 2000.

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