Maybe Congress Doesn’t Want Constituents to Know Surveillance Has Spiked Under Obama?

The ACLU sued the government to get it to release the reports on how much DOJ has used Pen Registers and Trap and Trace devices to get criminal suspects’ phone and email call records.

The records show a sharp increase in the use of PR/TT requests. Of particularly note, three times as many people have had their records turned over to DOJ under Obama.

In its post on the topic, ACLU notes that whereas, under Bush, neither Congress nor the public were getting these records, Obama’s Administration has submitted the reports in timely fashion, but Congress has not released the reports.

When no reports surfaced in 2010 and 2011, the ACLU filed a FOIA request to obtain them. After our request received no response, we filed suit to enforce it.

Although the Justice Department has in the past repeatedly failed to submit the annual reports to Congress, it appears that it has now cleaned up its act. Both the 2010 and 2011 reports were submitted to Congress in compliance with the reporting requirement. Unfortunately, Congress has done nothing at all to inform the public about the federal government’s use of these invasive surveillance powers. Rather than publishing the reports online, they appear to have filed them away in an office somewhere on Capitol Hill.

This is unacceptable. Congress introduced the pen register reporting requirement in order to impose some transparency on the government’s use of a powerful surveillance tool. For democracy to function, citizens must have access to information that they need to make informed decisions—information such as how and to what extent the government is spying on their private communications. Our representatives in Congress know this, and created the reporting requirement exactly for this reason.

It shouldn’t take a FOIA lawsuit by the ACLU to force the disclosure of these valuable reports. There is nothing stopping Congress from releasing these reports, and doing so routinely. They could easily be posted online, as the ACLU has done today.

Of course, Congress didn’t require DOJ to share this information with actual citizens; it only required DOJ share the information with Congress. Republicans have no incentive to turn over records that show Obama’s DOJ has investigated crime (in particularly the drug trafficking these records are most often used to investigate) more aggressively than Bush did. And Democrats have no incentive to show their President has trampled privacy. And given the likelihood these records are being used in creative new ways, neither party has an incentive giving people more reason to question how PR/TT are being used (I’ve long noted that their used started to rise after Bush’s illegal wiretap program got exposed, and suspect there may be a connection).

In short, Congress is complicit in hiding the extent to which increasing numbers of Americans are being surveilled by the government.

But that shouldn’t be a surprise at this point.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. mspbwatch says:

    This new whistleblower disclosure might be relevant:

    “ELSUR Program

    When the FBI seeks to place a wiretap, it must obtain a court order. To obtain a court order, it must among other things testify to a Federal judge as to whether the target of the wiretap has been the subject of a previous wiretap.

    Unfortunately, the system used by the FBI to archive information on previous wiretaps does not work properly, returning false positive and false negatives when a search is performed. This system, known internally as ERS, possessed only a rudimentary search capability and suffered from years of poor or mishandled indexing procedures and underfunding. In fact, the Records Management Division spent no money on the maintenance of this system for at least 5 years. These deficiencies have been documented by the FBI, but these documents on the deficiencies have been conveniently excluded from any searchable database within the FBI and would therefore not be found in any discovery request sent to the FBI and would not be available to the National Archives.

    The impact of these problems are that hundreds if not thousands of people may have been tried and convicted on evidence that was illegally obtained due to false testimony in obtaining permission for the wiretap.”

  2. 1789 says:

    Occupy shocked the sh*t out of the Establishment and the gloves have come off and ANY type / kind of dissent in the future in this country is going to be absolutely CRUSHED by the Establishment’s Iron Fist. the usa Establishment is watching the protests erupting worldwide and it is not going to allow ANY of that DFH sh*t to happen here. Surveillance is the key to pre-empting and disrupting. How much longer will the usa sheeple put up with this??? (as an aside, how much longer will the usa Establishment allow the ACLU to continue to exist? just wondering.)

  3. BSbafflesbrains says:

    @1789: Until the establishment shuts down the internet they can’t stop the DFH’s from organizing as Mubarak saw in Egypt and Bloomberg is seeing in NY. It’s good intelligence to spy and find out who is against you but what if it turns out everybody is against you. THat is where we are headed with the current fascists in charge and their bought and paid for politicians. Somewhat OT has any other prominant politician besides Warren come out supporting OWS. I know Jill Stein was there and even got arrested at a protest and I am voting for her but sadly I can’t say she is a Prominant politician just yet.

  4. lefty665 says:

    @1789: Hey 1789, the 2nds there to defend the 1st, and so’s the ACLU. You guys ever going to rumble to protect them, or just piss around waving a yellow flag?

  5. Please & Thank You says:

    “And given the likelihood these records are being used in creative new ways, neither party has an incentive giving people more reason to question how PR/TT are being used (I’ve long noted that their use started to rise after Bush’s illegal wiretap program got exposed, and suspect there may be a connection).”

    a lot to ponder / wonder about in that sentence – any chance we will see an update to this post or a future post expanding / connecting the dots???

  6. Well Wouldya Look At That says:

    Feds snoop on social-network accounts without warrants

    Justice Department report shows real-time surveillance targeting social networks and e-mail providers jumped 80 percent from 2010 to 2011. The ACLU says current law doesn’t protect Americans’ privacy.

    Federal police are increasingly gaining real-time access to Americans’ social-network accounts – such as Facebook, Google+ and Twitter – without obtaining search warrants, newly released documents show.

    The numbers are dramatic: live interception requests made by the US Department of Justice to social-networking sites and e-mail providers jumped 80 percent from 2010 to 2011.

  7. prostratedragon says:

    To wax philosophical for a moment, it must have been over 15 years ago that I called for a taxi from a certain company in Ann Arbor and, before saying much beyond that I’d like a cab at such-and-such heavily-frequented place to the dispatcher was asked whether I was going to the private address I was in fact going to this evening. I think I might have called that company 5 or 6 times thereafter, based only on need.

    But that’s how long I’ve known that the privacy part was done.

  8. sOLbus says:

    Once again, the depth and impact of the non-civilian side of the surveillance of American Citizens on American Soil is completely ignored.

    Good Job!

  9. stu says:

    Complicity and apathy on the part of our congress since 2001 is mind-boggling. I originally thought it had to do with a democratic congress and republican president, but I now think it really doesn’t matter who is in power — both sides have their agendas and the result is chronic mismanagement of our government. A final thought: the polls I’ve seen over the last few years show congress with an approval rating in the teens — why isn’t THAT ever discussed?

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