sense of how they collect information about government use. The critical statutory regulations are the Wiretap Act; the Pen Register Act; the Stored Communications Act; the Foreign Intelligence Surveillance Act (FISA); and the different provisions for National Security Letters. The first three laws concern the use of surveillance for domestic purposes—that is, in the context of ordinary criminal investigations. The last two statutes regulate the use of surveillance for foreign intelligence purposes, such as counter-terrorism. And, in a nutshell, the most public information is generated about the U.S. government’s use of the Wiretap Act. Yet, this law in many ways has become less important than other telecommunications surveillance statutes, and we know far less about the use of these other statutes.

 

Telecommunications Surveillance for criminal investigations

A review of the legal basis for telecommunications surveillance starts, logically, with the Wiretap Act, which is the oldest of the modern statutory authorities in this area. Enacted in 1968, the Wiretap Act sets a high statutory standard before the government can “intercept” a “wire or oral communication.” It also requires the government to publish relatively detailed data sets about its use. The Wiretap Act assigns the task of collecting this information to the Administrative Office of the United States Courts, which then publishes the statistics. 1

ILLUs TRATIon By s TUAR T BRADFoRD

What is the problem then? The difficulty is that the Wiretap Act regulates only the capturing of the content of messages contemporaneously with their transmission. As an example of its coverage, if law enforcement wish-es to intercept a telephone call as it is occurring, the Wiretap Act will apply. Yet, technological changes have created a variety of information that falls outside the Wiretap Act, whether because it is “telecommunications attributes” rather than content, or stored on a server. Telecommunications attributes are generally regulated by the Pen Register Act, and information stored on a server generally falls under the Stored Communications Act. I will consider each law in turn.

The Pen Register Act, as first en-

acted in 1986, regulated only access to telephone numbers dialed from a specific phone, or received by it. Today, the Pen Register Act, as amended by the Patriot Act in 2001, more broadly regulates access to “dialing, routing, addressing, or signaling information.” Examples of such information are IP addresses and email addressing information.

all, the situation is reminiscent of the anarchic administrative conditions prior to the New Deal’s creation of the Federal Register and other means for the orderly publication of governmental records.

As a further shortcoming, pen register reports only list federal collection of information pursuant to the law. If use of the Pen Register Act follows the

Like the Wiretap Act, the Pen Register Act requires collection of information about its use. Yet, reports pursuant to it are far less detailed than those under the Wiretap Act, and the U.S. government does not make them publicly available. And perhaps the greatest surprise is that Congress has shown scant interest in even ensuring it actually receives the information to which it is statutorily entitled from the Department of Justice. Over-

pattern of the Wiretap Act, however, states are now engaging in far greater use of their authority than are federal law enforcement authorities.

The third statutory authority for telecommunications surveillance is the Stored Communications Act. This statute is particularly significant today because so many kinds of telecommunications occur in asynchronous fashion. For example, sending an email message may be the most prevalent