Warrantless “emergency” surveillance of Internet communications by DOJ up 400%

(Christopher Soghoian) According to an official DOJ report, the use of “emergency”, warrantless requests to ISPs for customer communications content has skyrocketed over 400% in a single year.

The 2009 report (pdf), which I recently obtained via a Freedom of Information Act request (it took DOJ 11 months (pdf) to give me the two-page report), reveals that law enforcement agencies within the Department of Justice sought and obtained communications content for 91 accounts. This number is a significant increase over previous years: 17 accounts in 2008 (pdf), 9 accounts in 2007 (pdf), and 17 accounts in 2006 (pdf).

Background

When Congress passed the Electronic Communications Privacy Act in 1986, it permitted law enforcement agencies to obtain stored communications and customer records in emergencies without the need for a court order.

In such scenarios, a carrier can (but is not required to) disclose the requested information if it, “in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.” Typically, belief means that a police officer states that an emergency exists.

With the passage of the USA PATRIOT Improvement and Reauthorization Act of 2005, Congress created specific statistical reporting requirements for the voluntary disclosure of the contents of subscriber communications in emergency situations. In describing his motivation for introducing the requirement, Senator Lungren stated that:

I felt that some accountability is necessary to ensure that this authority is not being abused… This information [contained in the reports] I believe should be highly beneficial to the Committee, fulfilling our oversight responsibility in the future … this is the best way for us to have a ready manner of looking at this particular section. In the hearings that we had, I found no basis for claiming that there has been abuse of this section. I don’t believe on its face it is an abusive section. But I do believe that it could be subject to abuse in the future and, therefore, this allows us as Members of Congress to have an ability to track this on a regular basis.

The current reports are deeply flawed

The emergency request reports are compiled and submitted by the Attorney General, and only apply to disclosures made to law enforcement agencies within the Department of Justice. As such, there are no statistics for emergency disclosures made to other federal law enforcement agencies, such as the Secret Service, as well as those made to state and local law enforcement agencies.

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