Today the ACLU filed a Freedom of Information Act (FOIA) request with the Justice Department asking it to make public how frequently it uses surveillance tools called pen registers and trap and trace devices to intercept Americans’ communications. These devices make it possible for the government to access the to/from lines of emails, the telephone numbers people dial as well from which they receive calls, and the IP addresses of the websites they visit.
Needless to say, Americans have a strong interest in understanding how frequently and under what circumstances their communications are the targets of pen registers and trap and trace devices. The people we communicate with and the web pages we choose to visit can reveal a great deal about us, including the identities of our close friends and associates and what topics interest us when we engage in private sessions of reading and research. After all, a few years ago MIT students conducted a study claiming that they could predict with great certainty whether someone is gay based on analyzing their Facebook friends. The context is different, but the point is that knowing someone’s social network can be very revealing.
In fact, the Justice Department is legally mandated to compile statistics about how frequently it uses pen registers and trap and trace devices and submit them to Congress, but it has repeatedly failed to live up to that obligation. In the 1980s Congress passed a law requiring the Justice Department to submit a report every year to Congress about its use of these devices. Unfortunately, the Justice Department regularly violates this law. As David Kravets recently reported on the Wired Threat Level blog, “the Justice Department was not following the law and had not provided Congress with the material at least for years 2004 to 2008.” (The Wired story relied in large part on government documents obtained by Internet researcher and transparency advocate Chris Soghoian.) In 2009, the government made reports for those years available to the public.