Counterintelligence Surveillance Swelled Another 10% in 2011

Surprise, or maybe not so much, counterintelligence surveillance increased in 2011 according to the new annual Foreign Intelligence Surveillance Act (FISA) report [PDF]. The Justice Department filed 1,676 applications to conduct electronic surveillance in 2011, which is up from the 1,579 filed in 2010. In total, the DOJ submitted 1,745 applications to the Foreign Intelligence Surveillance Court (FISC) seeking authorization to conduct electronic surveillance or physical searches, jumping up 10.5% from 2010. Would you care to guess how many surveillance applications were denied by FISC? Zero, zippy, none . . . although the Court did modify 30 before approval.

As if someone had added Miracle Grow, or perhaps a truckload of horse manure, the applications for what the government calls “business records (including the production of tangible things)” grew like crazy in 2011. The government filed 205 business record applications, up from a total of 96 during 2010 [PDF]. The EFF pointed out that these records are one in the same as the government using the infamous Section 215 of the Patriot Act.

When the Patriot Act was reauthorized and granted the government even more domestic spy power on citizens, we learned about the “secret law” which prompted Senator Mark Udall to say, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”  At the time, Cato @ Liberty’s Julian Sanchez suggested that the Patriot Act’s Section 215 most likely included unfettered government access to geolocation data from your smartphone. It is interesting to note at this point that recently the Justice Department said that “requiring a search warrant to obtain cell phone location tracking information would ‘cripple’ prosecutors and law enforcement.” The ACLU received official confirmation that there are indeed “secret Justice Department opinions about the Patriot Act’s Section 215, which allows the government to get secret orders from a special surveillance court (the FISA Court) requiring Internet service providers and other companies to turn over ‘any tangible things’.”

There was a tiny bit of less-depressing news in the 2011 FISA report, since the FBI’s request for National Security Letters (NSLs) actually decreased to 16,511, down from 24,287 FBI NSL requests in 2010. Even though the numbers went down, by its very secretive nature the 7,201 different citizens listed in those NSLs will most likely never know about it. The FBI can write its own NSLs as they are only administrative subpoenas that require no signature from a judge and that come with a gag order forbidding the recipient from telling the person about whom it was requested. With an NSL, the government can demand banking and credit information or phone and email records as in finding out just exactly who the target talks to or interacts with financially. Wikipedia notes that the FBI is not alone in issuing NSLs since they are also reportedly issued by the CIA and the Department of Defense.

One of the problems with NSLs is that the Founding Fathers inked in all those pesky Constitutional requirements such as the Fourth Amendment which gives you rights like “you must be suspected of wrongdoing before the government searches your private records.” There is no judicial oversight when it comes to NSLs. “Of the dangerous government surveillance powers expanded by the Patriot Act,” the EFF has called NSLs the “one of the most frightening and invasive.” Both the ACLU and the EFF defended the Internet Archive in 2008 when an NSL ordered the Internet Archive to hand over detailed usage logs on several users. Starting in 2005, the ACLU was in a long legal battle when librarians decided to fight an NSL which “demanded patron records from the Library Connection, a consortium of 26 Connecticut libraries.” In 2004, the ACLU represented “John Doe” who dared to challenge an NSL, who dared to fight the Patriot Act and won. We now know John Doe to be one in the same as Nicholas Merrill, who is still gagged from disclosing pertinent NSL facts or else go to prison, but who is now trying to create the first surveillance-free ISP.

We will take off next time on this note of “hero” Nick Merrill and The Calyx Institute.

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