U.S. courts: Electronic surveillance up 500 percent in D.C.-area since 2011, almost all sealed cases
By Spencer S. Hsu and Rachel Weiner
Oct 24 2016
Secret law enforcement requests to conduct electronic surveillance in domestic criminal cases have surged in federal courts for Northern Virginia and the District, but only one in a thousand of the applications ever becomes public, newly released data show.
The bare-bones release by the courts leaves unanswered how long, in what ways and for what crimes federal investigators tracked individuals’ data and whether long-running investigations result in charges.
Yet the listings of how often law enforcement applied to judges to conduct covert electronic surveillance — a list that itself is usually sealed — underscore the exponential growth in the use of a 1986 law to collect data about users’ telephone, email and other Internet communications.
Unsealing basic docket information “is an important first step for courts to recognize that they have been enabling a kind of vast, secret system of surveillance that we now know to be so pervasive,” said Brett Max Kaufman, a staff attorney at the American Civil Liberties Union’s Center for Democracy.
The two federal courts are among the most active in the nation, with investigations that can span the country — and are among only a handful known to make even modest disclosures about their surveillance dockets.
Peter Carr, a spokesman for the Justice Department, said “there are no broad generalizations or presumptions about when matters are sealed or not sealed,” and that such decisions are “an individualized process.”
When courts choose to share information “on the use of these investigative tools, the Department [of Justice] has worked with them” to preserve “the integrity of ongoing investigations,” and shield witnesses and the reputations of targets who are never charged, Carr said.
In Northern Virginia, electronic-surveillance requests increased 500 percent in the past five years, from 305 in 2011 to a pace set to pass 1,800 this year.
Only one of the total 4,113 applications in those five years had been unsealed as of late July, according to information from the Alexandria division of the U.S. District Court for the Eastern District of Virginia, which covers northern Virginia. Kaufman’s group obtained the Northern Virginia data in July and shared it with The Washington Post.
The federal court for the District of Columbia had 235 requests in 2012, made by the local U.S. attorney’s office. By 2013, requests in the District had climbed 240 percent, to about 564, according to information released by the court’s chief judge and clerk.
Three of the 235 applications from 2012 have been unsealed.
The releases from the Washington-area courts list applications by law enforcement to federal judges asking to track data — but not eavesdrop — on users’ electronic communications. That data can include sender and recipient information, and the time, date, duration and size of calls, emails, instant messages and social-media messages, as well as device identification numbers and some website information.
Electronic exchanges, even absent what was said or written, can help investigators map a wide range of a target’s relationships and the timing and pattern of activities.
The Virginia list also includes surveillance requests made since 2011 under a separate law that permits authorities to obtain the contents of emails.
The listings identified the case number of each surveillance application, the date it was filed and the name of the judge who reviewed it. Left undisclosed is information including the crime under investigation, any associated criminal case or charged defendant, or whether an investigation is ongoing or has ended. With rare exceptions, it also is not possible to determine whether a judge limited or denied an application, or whether a target or service provider challenged the government’s request.
The information about what are known as pen register and trap and trace orders was made public after litigation by the ACLU, the Electronic Frontier Foundation (EFF), journalists and others, including some service providers. The ACLU has urged disclosures by all courts so the public and lawmakers can learn whether public safety gains outweigh privacy trade-offs.
“It’s hard to understand whether this surveillance is necessary or whether there is overreach without basic information about how often these orders are sought or granted, or who is granting them. Even judges themselves do not know,” Kaufman said.