A report in the Washington Post newspaper in the USA has revealed that there has been a significant increase in secret requests for electronic surveillance in domestic criminal cases over the last decade. They also revealed that only a tiny number of these requests ever become public knowledge.
Their investigation looked at the data from just two US Federal Courts; one in the District of Columbia and one from Northern Virginia. These two courts were specifically chosen as they are the only ones in the USA to have disclosed any surveillance data at all, and are also among the country’s most active for this type of case.
Huge increase in requests
What they found was a 300% increase in the number of electronic data requests to the District of Columbia Federal Court between 2004 and 2015. Between 2012 and 2013 alone, the number doubled from 235 requests to 564.
The same pattern was repeated, on an even more dramatic scale, in the Northern Virginia Federal Court where the number of requests rose from 305 in 2011 to 1,800 in 2016; a 500% rise.
These requests are being made under the Electronic Communications Privacy Act 1986 – a piece of legislation that has been widely attacked for being totally outdated, despite the efforts of several subsequent pieces of legislation to bring it into line with modern technological developments.
Data from the US Justice Department shows that for the last year in which data is available, 2013, there were in excess of 42,000 such requests made nationwide, which is a sixfold increase from 2004.
Requests Made Public
Perhaps even more shocking than the increase in requests is the number of requests which have been unsealed, or in other words made public.
Of the 235 requests made in the District of Columbia Federal Court in 2012, just three have been unsealed. But in Northern Virginia, the figure is even worse, with just one of the 4,113 applications across a five-year period being unsealed.
A spokesperson for the US Justice Department, Peter Carr, told the Washington Post “there are no broad generalizations or presumptions about when matters are sealed or not sealed,” and that decisions are “an individualized process.”
Reasons not to publicly disclose can include protecting witnesses and those found innocent as well as protecting ongoing investigations, but none of these factors would be expected to expect such an overwhelming majority of requests.
Brett Max Kaufman, from the American Civil Liberties Union’s Center for Democracy, commented to the Washington Post that unsealing such requests are “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.”
Essentially the issue boils down to transparency, which the US Government does not have a strong record on when it comes to online surveillance.
As Kaufman went on to say, how can anyone understand the nature of these surveillance requests and whether they are necessary and proportionate when the bulk of the information is never revealed. “The government should disclose it and related materials so the public can decide for itself whether this kind of operation was lawful or wise.”
Sadly, secrecy on matters of surveillance is nothing new in the US and it seems unlikely that it will change anytime soon. Internet users who want to protect themselves from such state surveillance would be best advised to use a VPN to render themselves anonymous online and encrypt all the data to protect it.
But the fact remains that the US Government seems set to continue to use intrusive surveillance across its law enforcement provisions for the foreseeable future.