Big Brother Watch: Department of Justice Warrantless Digital Spying Way Up in Past Two Years


In George Orwell's novel, 1984, the masters of the totalitarian dystopia of Oceania could chiefly spy on its hapless citizens through telescreens. However, if you are out of sight, you could hope that you were out of Big Brother's mind. In the actual modern world, we've moved more and more of our lives online where the police can get access to them with just the click of a mouse. A new report by the American Civil Liberties Union* (ACLU) shows that's exactly what the police have been doing—snooping through the digital detritus that Americans leave in their wakes without so much as a warrant authorized by a neutral judge.

Without going too deeply into details, the ACLU report documents an enormous increase in the Justice Department's use of pen register and trap and trace surveillance in the past two years. Pen registers capture outgoing data, while trap and trace devices capture incoming data, e.g., phone numbers, emall addresses, and records about instant messaging. However this supposedly "non-content" information can reveal quite a lot about a person's private life. As the ACLU report explains:

…for a pen register, the government need only submit certification to a court stating that it seeks information relevant to an ongoing criminal investigation. 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. As one court noted, the judicial role is purely "ministerial in nature."

The content/non-content distinction from which these starkly different legal requirements arise is based on an erroneous factual premise, specifically that individuals lack a privacy interest in non-content information. This premise is false. Non-content information can still be extremely invasive, revealing who you communicate with in real time and painting a vivid picture of the private details of your life. If reviewing your social networking contacts is sufficient to determine your sexuality, as found in an MIT study a few years ago, think what law enforcement agents could learn about you by having real-time access to whom you email, text, and call. But the low legal standard currently applied to pen register and trap and trace devices allows the government to use these powerful surveillance tools with very little oversight in place to safeguard Americans' privacy.

In the past two years, how much more digital snooping have government agents engaged in? To get some idea see the chart below:

The ACLU favors legislation that would require law enforcement agents to at least get a warrant to sift through Americans' digital lives. Can it really be that the George W. Bush administration was more respectful of the privacy of Americans? Go here to explore Reason's extensive (and depressing) archive on the growth government surveillance.

*Disclosure I am a card carrying member of the ACLU.