Thanks to NSA whistleblower Edward Snowden many more people in the US and world-wide are learning about extensive US government surveillance and spying. There are publicly available numbers which show the reality of these problems are bigger than most think and most of this spying is happening with little or no judicial oversight.
Hundreds of Thousands Subject to Government Surveillance
The first reality is that hundreds of thousands of people in the US have been subject to government surveillance in the last few years. Government surveillance of people in the US is much more widespread than those in power want to admit. In the last three years alone about 5000 requests have been granted for complete electronic surveillance authorized by the secret FISA court. The FBI has authorized another 50,000 surveillance operations with National Security Letters in the last three years. The government admits that well over 300,000 people have had their phone calls intercepted by state and federal wiretaps in the last year alone. More than 50,000 government requests for internet information are received each year as reported by internet providers. And, remember, these are the publicly reported numbers so you can be confident there is a whole lot more going on which has not been publicly reported.
Courts Almost Never Deny Government Requests for Surveillance
The second reality is that there is little to no serious oversight by the courts of this surveillance. Government spy defenders keep suggesting the courts are looking carefully and rigorously at all this and only letting a tiny number of really bad people be spied on. Not true. Despite thousands of requests by the federal government to look deeply into people’s lives, the secret federal FISA court turned down no requests at all in the last three years. The state and federal courts report on wiretap applications document over 2000 applications annually for surveillance which authorize the interception of hundreds of thousands of calls and emails. The courts have turned down the government two times in the most recent report. FBI national security letters do not even have to be authorized by a court at all. The lack of Congressional oversight is plain to see but the lack of any judicial review of many of these surveillance actions and the very weak oversight where courts do review should concern anyone who cares about government accountability.
Let’s break down the surveillance by the authority for spying.
In FISA Court Government Always Wins
The US government has tried to say the public should not worry about government scooping up hundreds of millions of phone calls and internet activities because no real information is disclosed unless it is authorized by what is called the FISA court. Therefore, you can trust us with this information.
Actually called the Foreign Intelligence Surveillance Court, the FISA court is made up of ten federal judges who deliberate and decide in secret whether the government can gather and review millions of phone and internet records. This court, though I know and respect several of its members, cannot be considered an aggressive defender of constitutional rights and civil liberties.
Government lawyers go to these FISA judges in secret. Government lawyers present secret evidence in secret proceedings with no defense lawyer or public or press allowed and asks for secret orders allowing the government to secretly spy on people. Its opinions are secret. The only part the public knows is a one paragraph report which is made every year of the number of applications and the number of denials by the court.
What is worse is that the secret judges never turn the secret government lawyers down.
Over the last three years, the government has made 4,976 requests to the secret FISA court for permission to conduct electronic surveillance for foreign intelligence purposes. But the really big FISA number is zero. That is how many government requests to conduct electronic surveillance the secret FISA court has turned down in the last three years.
In 2012, the government asked for permission from the judges of the secret Foreign Intelligence Surveillance Court (FISA) 1,789 times to conduct electronic surveillance for foreign intelligence purposes. There were zero denials. One time the government withdrew its request. Source: US Department of Justice letter to Congress, April 30, 2013. http://www.fas.org/irp/agency/doj/fisa/2012rept.pdf
In 2011, the government asked FISA judges 1,676 times to conduct electronic surveillance for foreign intelligence services. There were zero denials. The government withdrew two requests. Source: US Department of Justice Letter to Congress April 30, 2012. http://www.fas.org/irp/agency/doj/fisa/2011rept.pdf
In 2010, the government asked FISA judges 1,511 times to conduct electronic surveillance for foreign intelligence purposes. There were zero denials. The government withdrew five requests. Source: US Department of Justice letter to Congress April 29, 2011. Source: US Department of Justice Letter to Congress April 30, 2012. http://www.fas.org/irp/agency/doj/fisa/2011rept.pdf
Not a bad record, huh? Nearly five thousand victories for those who want surveillance powers and no defeats is a record that should concern everyone who seeks to protect civil liberties.
FBI National Security Letters Scoop Up Information No Court Approval Even Needed
With a NSL letter the FBI can demand financial records from any institution from banks to casinos, all telephone records, subscriber information, credit reports, employment information, and all email records of the target as well as the email addresses and screen names for anyone who has contacted that account. The reason is supposed to be for foreign counterintelligence. There is no requirement for court approval at all. So no requests have been denied. The Patriot Act has made this much easier for the FBI. http://epic.org/privacy/nsl/#authority
According to Congressional records, there have been over 50,000 of these FBI NSL requests in the last three years. This does not count the numerous times where the FBI persuades the disclosure of information without getting a NSL. Nor does it count FBI requests made just to find out who an email account belongs to.
These reported NSL numbers also do not include the very high numbers of administrative subpoenas issued by the FBI which only require approval of a member of the local US Attorney’s office. 21 USC 876. See 1 William & Mary Policy Review 51 (2010). David Kravets, “We don’t need no stinking warrant: the disturbing, unchecked rise of the administrative subpoena.” WIRED, 8-28-12 http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/
In 2012, the FBI issued 15,229 national security letter requests for information concerning US citizens. Source: US Department of Justice letter to Congress, April 30, 2013. http://www.fas.org/irp/agency/doj/fisa/2012rept.pdf
In 2011, the FBI made 16,511 national security letter requests for information concerning US persons. Source: US Department of Justice Letter to Congress April 30, 2012. http://www.fas.org/irp/agency/doj/fisa/2011rept.pdf
In 2010, the FBI made 24,287 national security letter requests for information on US citizens. Source: US Department of Justice Letter to Congress April 30, 2012. http://www.fas.org/irp/agency/doj/fisa/2011rept.pdf
Since there is no court approval needed, there are no denials. The NSL record is even better than the FISA record at 56,027 wins and no losses for Team Surveillance.
Thousands of Wiretaps Each Impacting Over One Hundred People Authorized Two Denied
According to the latest report to Congress by the US Courts, there were 2,732 applications for wiretaps submitted to all federal and to half of the state courts in 2011. Half the states did not report on their numbers so these numbers are certainly quite much too low. The term wiretap is out of date as this process currently covers providing information on conventional phone lines, cell phones, secret microphones, texts, fax, paging, and email computer transmissions.
For the year 2011, out of 2,732 applications, only two were denied. Two losses out of 2700 tries is a comparatively poor win loss record for the surveillance folks.
On average, each wiretap intercepted the communications of 113 people, thus over three hundred thousand people had their calls intercepted.
The most prevalent reason reported for the wiretaps was drug offenses. The average length of the wiretap was 42 days. One federal wiretap in Michigan resulted in intercepting over 71,000 cellular messages extending over 202 days. A New York state wiretap intercepted 274,210 messages over 564 days. http://www.uscourts.gov/uscourts/Statistics/WiretapReports/2011/2011WireTap.pdf
Company Reports on Spying Show Tens of Thousands of Requests
It is well known that user accounts at Google, Apple and others contain a treasure trove of information on the customer’s basic information including searches, likes and dislikes, purchases, friends, and the like. Government investigators seek this information tens of thousands times each year as the reports from the companies show.
Apple reported receiving 4,000 to 5,000 government requests for information on customers in just the last six months. From December 1, 2012 to May 31, 2013 Apple received law enforcement requests for customer data on 9-10,000 accounts or devices. This number does not include FISA requests. Most of these requests are from police for robberies, missing children, etc. https://www.apple.com/apples-commitment-to-customer-privacy/
Facebook reported that in a six month period ending December 31, 2012, it received between 9,000 and 10,000 requests from the US government for user data on 18,000 to 19,000 accounts. http://newsroom.fb.com/News/636/Facebook-Releases-Data-Including-All-National-Security-Requests
Google reported it received over 15,000 requests for data by US government officials in 2012 for information on over 30,000 accounts. It produced some data 88% of the time. http://www.google.com/transparencyreport/userdatarequests/US/
Microsoft (including Skype) reported 75,378 law enforcement requests for information on 137,424 accounts world-wide for the year 2012. In over 11,000 cases, they could find no data to respond to the requests. Microsoft disclosed non-content information in 56,388 cases, mostly to the US, UK, Turkey, Germany and France. http://blogs.technet.com/b/microsoft_on_the_issues/archive/2013/03/21/microsoft-releases-2012-law-enforcement-requests-report.aspx
In the US, Microsoft received 11,073 requests from law enforcement for information on 24,565 accounts. Microsoft rejected 759 requests or 6.9% on legal grounds. Microsoft provided user content in 1544 cases and subscriber/transactional data in 7,196 cases. http://www.microsoft.com/about/corporatecitizenship/en-us/reporting/transparency/
Yahoo said that in the last six months of 2012 it received between 12,000 and 13,000 requests for user data from law enforcement. http://yahoo.tumblr.com/ June 17 Marissa Mayer CEO and Ron Bell
In a democracy, transparency and public participation are critical. This is not just about “the terrorists.” This is about civil liberty and government accountability. Hundreds of thousands of people are being spied upon every year by our own government’s public admissions. There is little oversight by judges and even less by Congress. If the government admits this much, you can certainly assume there is more to come out. It is time to wake up. These secret subpoenas and secret courts and secret processes should be abolished or fundamentally changed. Otherwise, change the slogan on the dollar to “In Secrecy We Trust.”
Bill is a human rights lawyer and law professor at Loyola University New Orleans College of Law. Bill also works with the Center for Constitutional Rights. A longer version of this article with sources is available. You can reach Bill at [email protected]