form of telecommunications in the
U.S. today. Yet, an email message is
in transmission, as the term is understood under the Wiretap Act, for only a
short period. Transmission is the time
it takes from clicking on the “send”
command to the moment the message arrives at the server of the recipient’s ISP. Rather than recourse to the
Wiretap Act, law enforcement typically seeks collection of email from ISPs
under the Stored Communications
Act, which contains requirements for
obtaining access to information that
are generally less rigorous than under
the Wiretap Act.
Despite the centrality of the Stored
Communications Act, there are almost
no official statistics collected about
law enforcement’s use of this statute.
This statute contains only a single reporting exception, which regards disclosure in an emergency. Information
about its use is given to House and
Senate committees, but is not made
publicly available at present. In this
regard, Switzerland offers a step in
the right direction: in that country,
the Federal Department of Justice and
the police publish annual information
about the number of orders for stored
for foreign intelligence Purposes
The three statutory authorities thus
far surveyed all regulate access to telecommunications information for domestic law enforcement purposes. On
the intelligence side, FISA provides the
chief statutory regulation for the government’s collection of information
about foreign intelligence within the
U.S. In addition to FISA, several stat-
The annual index
authorities, not just
the Wiretap act.
utes permit the FBI to obtain personal
information from third parties through
National Security Letters (NSLs). A NSL
is a written directive from the FBI in
cases involving national security; it
does not require judicial review.
FISA requires the Department of
Justice to file annual reports with Congress and the Administrative Office
of the Courts. These reports provide
merely skeletal information about
the use of FISA authorities. FISA also
requires the Attorney General to file
reports with the Senate and House
regarding all uses of pen register devices, pursuant to this statute. This information is made publicly available.
As for the NSLs, in its reauthorization of the Patriot Act in 2005, Congress required two important kinds of
information to be collected about this
kind of information gathering. First,
it expanded an existing reporting requirement that sent information to
Congress, and required annual public data on the FBI’s request for NSLs.
Second, the law required the Department of Justice to carry out audits of
the use of NSLs. The resulting audits
have already demonstrated substantial underreporting of the actual number of NSLs and misuse of statutory
Steps to Take
As I’ve described here, there is currently inadequate data about telecommunications surveillance in the U.S. I
conclude by discussing four themes
related to creation of a national telecommunications surveillance index.
First, a central role should be given to
the Administrative Office of the U.S.
Courts, as under the Wiretap Act, in
collecting and publicizing telecommunications surveillance statistics.
Since 1968, the Administrative Office
has successfully carried out this role
pursuant to the Wiretap Act, and the
other applicable statutes should be
amended so that applicable information goes to this entity.
Second, the annual index should
include information about all
statutory authorities, not just the Wiretap
Act. As noted earlier, this statute is
less important as a source of statutory
authorization for surveillance activity
than the Stored Communications Act
and other statutes.
Third, one of the most difficult tasks
in creating an annual report card will
be harmonizing the information collected within a single index. The goal
is clear: to provide a picture of how
activities in different statutory areas
relate to each other. Nonetheless,
development of a workable yardstick
raises a series of complex issues because each statute sweeps in different
kinds of data and, sometimes subtly,
different kinds of surveillance.
Fourth, telecommunications surveillance statutes should increase
independent audit functions. It is
essential to have an independent assessment of the accuracy of the supplied data and the completeness of
supplied reports. As part of this assessment, the use of statistical sampling of case files will be a useful
technique. The Inspector General of
the Department of Justice has already
taken this approach in assessing use
of NSLs pursuant to its audit authority. In an international illustration of
this methodology, the Max Planck Institute for Foreign and International
Criminal Law published an ambitious
statistical analysis of a sample of telecommunications surveillance orders
issued in Germany. 3
The twin goals of an annual telecommunications surveillance index
should be to minimize the impact of
surveillance on civil liberties and to
maximize its effectiveness for law enforcement. There is a compelling need
at present for Congress to require statistical benchmarks to accompany all
the laws that authorize telecommunications surveillance.
1. Administrative office of the United states Courts.
2007 Wiretap Report; http://www.uscourts.gov/
2. Eidgenössisches justiz und Polizeidepartement,
Überwachung des Post und Fernmeldeverkehrs;
3. Albrecht, H.j., Grafe, A., and Kilching, M. Max-Planck-Institut fűr ausländisches und internationalises
strafrecht, Rechtswirklichkeit der Auskunftserteilung
űber Telekommunikationsverbindungsdaten nach
§§ 100g, 100h stPo (March 2008), Deutscher
Bundestag, Drucksache 16/8434.
4. schwartz, P.M. Reviving Telecommunications
surveillance Law. University of Chicago Law Review
287 (2008); http://www.paulschwartz.net/pdf/12%20
Paul M. Schwartz is a professor of Law at the University
of California, Berkeley Law school, and a director at the
Berkeley Center for Law and Technology.