The Law Enforcement Surveillance Reporting Gap

The abstract of Christopher Soghoian's paper from the Social Science Research Network:

Third party facilitated surveillance has become a routine tool for law enforcement agencies. There are likely hundreds of thousands of such requests per year. Unfortunately there are few detailed statistics documenting the use of many modern surveillance methods. As such, the true scale of law enforcement surveillance, although widespread, remains largely shielded from public view.

Prior to the widespread adoption of the Internet and mobile phones, law enforcement agencies’ use of third party facilitated electronic surveillance was largely limited to real-time interception of communications content ('wiretapping') and non-content data (through the use of 'pen register' and 'trap and trace' orders). In order to increase its ability to perform effective oversight, Congress mandated that annual reports be created documenting the use of these surveillance powers. These reports are intended to enable policy makers as well as the general public to determine the extent to which such surveillance methods are used, and in the words of Senator Patrick Leahy, provide a 'far more reliable basis than anecdotal evidence on which to assess law enforcement needs and make sensible policy in this area.'

The existing surveillance statistics might be sufficient if law enforcement agencies’ surveillance activities were limited to wiretaps and pen registers. However, over the last decade, law enforcement agencies have enthusiastically embraced many new sources of investigative and surveillance data for which there are no mandatory reporting requirements. As a result, most modern surveillance now takes place entirely off the books and the true scale of such activities, which vastly outnumber traditional wiretaps and pen registers, remains unknown.

In this article, I examine the existing electronic surveillance reporting requirements and the reports that have been created as a result. Some of these have been released to public, but many have only come to light as a result of Freedom of Information Act requests or leaks by government insiders. I also also examine several law enforcement surveillance methods for which there are no existing legally mandated surveillance reports. Finally, I propose specific legislative reporting requirements in order to enable some reasonable degree of oversight and transparency over all forms of law enforcement electronic surveillance.

Wiretaps are increasing

From the Bleader:

Last week the Administrative Office of the U.S. Courts released its annual report on wiretap use by federal and state law enforcement agencies, and—to the surprise of no one who follows such Fourth Amendment-related subjects—wiretaps are increasing. In 2010, state and federal investigators received 3,194 wiretap orders—34 percent more than in 2009.

The wiretaps aren't being used for terrorism-monitoring purposes, but mostly for what Julian Sanchez of the Cato Institute calls 'ordinary law enforcement purposes'—investigations into crimes involving drugs, racketeering, and the like. In fact, 84 percent of wiretap orders were given for drug investigations. In Cook and DuPage Counties, all authorized wiretaps were for narcotics investigations; same goes for the U.S. Northern District of Illinois, minus two racketeering investigations.Given that wiretaps cost an estimated average of $52,000 a pop, that's one expensive drug war. (Other reports price wiretaps between $1,000 to $500,000.)

Judge will hear challenge to laptop border searches

From CNET News:

A federal judge will hear arguments today in a lawsuit challenging the Obama administration's claim that it can search travelers' laptops, cell phones and other electronic devices at the border and seize them indefinitely.

Civil liberties groups filed the suit last September, which challenges the Department of Homeland Security's policies on constitutional grounds and asks a federal district court in New York City to bar the agency from continuing its current practices.

In August 2009, Homeland Security announced that it would continue a Bush administration policy that allows laptops and electronic gear to be seized and held indefinitely even if there is no evidence of illegal activities. The complete contents of a hard drive or memory card can be shared with other government agencies and perused at length for evidence of lawbreaking.

Courts have generally upheld the ability of border agents to conduct searches, even relatively invasive ones. This legal challenge effectively says that the changes in technology -- mobile phones and PDAs are growing smaller and more capable and can carry the equivalent of entire libraries and filing cabinets of data -- require judges to craft a new rule limiting the scope of border searches that have become more invasive.

Woman Faces Jail Time for Planting Organic Vegetable Garden

Not so much an invasion of privacy issue, but more along the lines of the right to be left alone! From TIME.com:

A Michigan woman is being charged with a misdemeanor offense and is facing up to 93 days in jail. Her crime? Planting a vegetable garden—in her own yard. Her front yard, that is.

Like many consumers today, Julie Bass, of Oak Park, Mich., appreciates the taste and healthfulness of organic vegetables, but isn’t much of a fan of how much going organic costs at the store. So, like many health-minded consumers, she planted a vegetable garden on her property.

Texas police department puts 'eyes in the sky' with unmanned aircraft

From kens5.com:

A Texas police department is one of first to experiment with unmanned aircraft.

The Arlington Police Department is experimenting with two battery-operated, remote-controlled air crafts.

They are flying them over a restricted airspace near Lake Arlington Dam, away from populated areas.

The aircrafts weigh only 11 pounds and are 20 inches long, and come equipped with cameras that shoot video and pictures.

Arlington Police Chief Theron Bowman says they would be a great asset to the city, but some residents are calling it an invasion of privacy.

Someone’s watching you

From the Deccan Chronicle:

You’re being watched. At a shopping mall, a restaurant, in the office and everywhere in between. You are possibly under surveillance and are being tracked from every angle possible.

The emergence of CCTVs, handycams and cameras has given rise to a new concern — invasion of privacy. Surveillance in everyday life is giving the creeps to people as they feel that they are being reduced to objects of suspicion.

The recent hullabaloo over a surveillance camera, which was tucked away in an X-ray room in Ernakulam Medical Centre, is just one of the recent instances that has stirred the ‘being monitored’ debate. The baby monitors found these days in every nook and corner have indeed become man’s best friend in cracking down on crime.

But are they turning into irritating prying eyes? “Cameras may be a good way to combat anti-social behaviour but they have the potential advantage of becoming nosey,” says Mathew James, a businessman, who isn’t too happy with monitoring devices.

Civil Liberties, Privacy, + Security

From NowPublic News:

If privacy is an essential component of personhood, how is personhood compromised by the information age, surveillance technologies, and other potential invasions of privacy? Similarly, what constitutes sufficient justification for the invasion of privacy by government, private individuals, or business entities? Lastly, for the purposes of constructing policy, how should policy reflect the appropriate balance in protecting privacy?' - Lisa Nelson in 'Privacy and Technology: Reconsidering a Crucial Public Policy Debate in the Post-Sept. 11 Era'


Denver Attorney H. Bryan Cunningham divides privacy issues into two buckets or baskets: (1) the relationship of citizens to its government and (2) the relationship of citizens to everyone else such as marketers, big banks, computer companies, etc. The United States and European Union view these two categories 'diametrically opposite' of each other, he said.


For example, British police have the authority to arrest and to hold suspects for up to 28 days without charging them with a crime; whereas, American police can only hold suspects for up to 48 hours, he said.

Is the rule obsolete?

From the Youngstown News:

This summer marks the 50th anniversary of the landmark U.S. Supreme Court decision Mapp v. Ohio. The case originated out of Cleveland, where police were looking for a fugitive and forced their way into Dollree Mapp’s apartment without her consent. While in the apartment the police confiscated illegal material and arrested Mapp.

Forty-seven years before Mapp the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was available to all defendants in federal court. However, the rule had not been recognized or applied by all states. Ohio was one of those states that did not recognize the exclusionary rule.

Mapp v. Ohio changed the nation’s jurisprudential landscape. Mapp explicitly held that the exclusionary rule applies to the states and as a result state prosecutors could not use evidence gained by illegal or improper means to obtain a conviction.

Federal judges are short-circuiting the Fourth Amendment's guarantee against unreasonable searches and seizures

From the Washington Examiner:

Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski and his clerk Stephanie Grace have written an opinion piece about the demise of the Fourth Amendment to the U.S. Constitution subtitled “How technology helped make the Fourth Amendment obsolete.”

Based on Judge Kozinski’s reputation as a fine even libertarian jurist, I thought before reading the article it might be a mea or noster (our) culpa on behalf of the American judiciary, which over the past century has issued opinion after opinion destroying the force of the Fourth Amendment as a restraint on government.

I had hoped Judge Kozinski, a Ronald Reagan appointee, would have recited how judges have upheld government searches without citing to the Fourth Amendment’s requirements of warrants issued only after someone, under oath and affirmation, provided probable cause.

ACLU battles Boulder over Chautauqua Park searches

From KDVR:

The American Civil Liberties Union is -once again- taking issue with the City of Boulder’s policy of searching bags and coolers brought to Chautauqua Park on July 4th.

City officials say the searches are necessary due to the risk of fireworks sparking a wildfire in the open space park. The ACLU, however, says they violate the Fourth Amendment protecting people against unreasonable search and seizure.

In a letter to the city last month, Boulder ACLU chapter chairman Judd Golden said the practice 'does little more than flaunt the City's police power by subjecting OSMP (Open Space and Mountain Parks) visitors to 'consent or leave' unconstitutional searches,' the Daily Camera reported.

Sheriffs asked to arrest airport security agents

From WorldNetDaily:

The issue of invasive physical pat-downs by federal Transportation Security Administration agents at airports across the nation isn't going away anytime soon, with word that the Libertarian Party of Florida formally is demanding that sheriffs in the state's 67 counties arrest TSA agents for sexual battery.

The enhanced pat-down procedures – or the optional full body scans that essentially create a nude image of passengers – were imposed on travelers across America in recent months, prompting a wide range of reactions.

Just last week a state law proposed in Texas that would have created charges against federal agents who impose those physical pat-downs – described by critics and 'groping' – failed at the end of a special legislation session when representatives couldn't assemble an enhanced quorum required during the special meetings of the lawmakers.

Free to shoot?

From Fredericksburg.com:

VIDEOS and photographs, so easily posted on the Internet, have been the bane of security forces trying to quell unrest on the streets. Think Egypt, Tunisia, and Washington?

Jerome Vorus of Alexandria was walking in Georgetown last summer when he noticed some Metropolitan Police officers making a traffic stop. He began taking pictures, and when the cops noticed, they approached him and asked for his identification. According to papers filed in court, four different officers told him it was illegal to take pictures or recordings of MPD officers without permission from the public affairs office. It was 30 minutes before the officers returned Mr. Vorus' ID.

The Virginian has now filed suit, saying his First Amendment rights to take pictures in public places, as well as his Fourth Amendment right offering protection against unreasonable searches and seizures, were violated.