Focusing public attention on emerging privacy and civil liberties issues

Wiretapping

"The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping." -Justice Louis Brandeis, Olmstead v. United States, 277 U.S. 438 (1928)

News

  • Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report: The Administrative Office of the United States Courts has issued the the 2012 Wiretap Report. The annual report, provides comprehensive data on all federal and state wiretap applications, including the types of crimes investigated, as well as the costs involved and whether arrests or convictions resulted. In contrast, the annual report from the Foreign Intelligence Surveillance Court provides almost no information about a surveillance authority that is routinely directed toward the American public. According to the 2012 Wiretap Report, 3,395 intercept orders were issued in 2012. Of these orders, 3,292 (97%) targeted "portable devices" and 7 were "roving" taps to target individuals using multiple devices. The vast majority (87%) of wiretaps were issued in narcotics investigations, though some involved multiple offenses. In 2012, installed wiretaps were in operation for an average of 39 days, 3 days below the average in 2011. Encryption was reported for 15 wiretaps in 2012 and for 7 wiretaps conducted during previous years. In four of these wiretaps, officials were unable to decipher the plain text of the messages. This is the first time that jurisdictions have reported that encryption prevented officials from obtaining the plain text of the communications since the Administrative Office began collecting encryption data in 2001.There were 3,743 arrests related to these intercepts, which resulted in 455 (12%) convictions. EPIC maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders - Stats, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act. (Jun. 28, 2013)
  • 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied: According to the 2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the Federal Wiretap Reports. For more information, see EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and EPIC: Foreign Intelligence Surveillance Act. (May. 2, 2013)
  • 2011 Report: Wiretap Authorizations Decrease: According to the 2011 Wiretap Report, released by the Administrative Office of the US Courts, federal and state applications for wiretap orders dropped 14 percent in 2011, compared to the number reported in 2010. The reduction in wiretaps resulted primarily from a drop in applications for intercepts in narcotics offenses. In 2011, a total of 2,732 intercept applications were authorized by federal and state courts, with 792 applications by federal authorities and 1,940 by the states. In 2011, 98 percent, or 2,674, of all authorized wiretaps were designated as portable devices. The Wiretap Report does not include interceptions pursuant to the Foreign Intelligence Surveillance Act of 1978. For more information see: EPIC: Wiretapping and Administrative Office of the US Courts: Wiretap Reports. (Jul. 3, 2012)
  • Supreme Court Set to Review Wiretap Case: The Supreme Court has agreed to hear Clapper v. Amnesty International USA, a challenge to the FISA Amendments Act of 2008. The Act expanded the Government's authority to engage in warrantless surveillance, and followed news of the Bush administration's program to wiretap international communications. A group of lawyers, journalists, and public interest organizations, who regularly engage in international communications, challenged the new law saying they feared that their private communications would be intercepted. The US Court of Appeals for the Second Circuit ruled that the case could proceed even though the plaintiffs had not established that they were subject to surveillance. The Government filed a petition for the Supreme Court to hear the case, which was granted today. EPIC recently filed an amicus brief in a Supreme Court case, First American v. Edwards, raising similar Article III standing issues in the context of a consumer protection statute. EPIC also filed an amicus brief along with the Stanford Constitutional Law Center and other interested groups, in Hepting v. AT&T, a case challenging AT&T's involvement in the FISA warrantless wiretapping program. For more information, see EPIC: Foreign Intelligence Surveillance Act (FISA). (May. 21, 2012)
  • EPIC Urges Justice Department to Investigate Google for Unlawful Wiretapping: EPIC wrote a letter to Attorney General Eric Holder asking the Department of Justice to investigate Google’s collection of Wi-Fi data from residential networks by means of "Street View" vehicles. The Federal Communications Commission recently fined Google $25,000 for obstructing an investigation concerning Street View and federal wiretap law. But as EPIC noted "by the agency’s own admission, the investigation conducted was inadequate and did not address the applicability of federal wiretapping law to Google's interception of emails, usernames, passwords, browsing histories, and other personal information." Members of Congress have expressed support for EPIC's recommendation to the Justice Department. Senator Richard Blumenthal said that "Google's interception and collection of private wireless data potentially violates the Wiretap Act or other federal statutes, and I believe the Justice Department and state attorneys general should fully investigate this matter." Congressman Ed Markey said that "[t]his fine is a mere slap on the wrist for Google," and called for a more comprehensive investigation. Many countries have found Google guilty of violating national privacy laws, and a US federal court recently held that unencrypted wireless network communications are not exempt from the protections of the Wiretap Act. For more information, see EPIC: Investigation of Google Street View and EPIC: Ben Joffe v. Google. (Apr. 17, 2012)
  • Appeals Court: Noncitizens Protected by Electronic Communications Privacy Act: A federal appeals court has ruled in Suzlon Energy v. Microsoft Corp. that foreign citizens are protected by the Electronic Communications Privacy Act. The decision is not that surprising as the Electronic Communications Privacy Act protects consumer data, without regard to nationality, by forbidding companies from disclosing communications data with third parties in most circumstances. Suzlon involved a civil suit in which Microsoft refused to disclose data from the Hotmail email account of Rajagopalan Sridhar, an Indian citizen. The court ruled that Sridhar was protected by the Electronic Communications Privacy Act and that Microsoft correctly refused to disclose communications from Sridhar's email account. For more information, see EPIC: Wiretapping. (Oct. 4, 2011)
  • DC Circuit Court Grants Access to Cell Phone Surveillance Records: The Circuit Court for the District of Columbia has ruled that the Department of Justice must release information regarding government surveillance of cell phone location data. The American Civil Liberties Union had filed a Freedom of Information Act request for information regarding current and past cases where the Department of Justice had accessed cell phone location data without a warrant. The agency sought to keep this information secret, claiming that releasing cell phone tracking data could implicate privacy of investigation subjects. The court, however, disagreed, stating, "The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool." For more information, see EPIC: Wiretapping and EPIC: Electronic Surveillance 1968-2010. (Sep. 7, 2011)
  • Court Approved Wiretaps Reach a New All-Time High: According to the newly released 2010 Wiretap Report, federal and state courts issued 3,194 orders for the interception of wire, oral, or electronic communications in 2010, up from 2,376 in 2009, a 34% increase. Only one request for authorization was denied. The average number of persons whose communications were intercepted rose from 113 per wiretap order in 2009 to 118 per wiretap order in 2010. Only 26% of intercepted communications in 2010 were incriminating. The report also indicated that encryption did not prevent officials from obtaining the plaintext of communications in the six cases in which it was encountered. The 2010 Wiretap Report does not include interceptions regulated by the Foreign Intelligence Surveillance Act (FISA) or interceptions approved by the President outside the exclusive authority of the federal wiretap law and the FISA. For more information, see EPIC: Wiretapping and EPIC: Title III Order Statistics. (Jul. 6, 2011)
  • Judge Rules Google Street View Data Collection May Violate Wiretap Act: In a lawsuit filed by several private citizens, a federal judge has found that Google's purposeful and secretive collection of Wi-Fi data as part of its "Street View" activities could constitute illegal wiretapping. EPIC filed an amicus brief in the case, providing a detailed legislative history of the Electronic Communications Privacy Act (ECPA) and arguing that private Wi-Fi communications are entitled to privacy protection under ECPA. EPIC said that Congress established "a presumption in favor of confidentiality except in those circumstances where the user has knowingly chosen to broadcast communications to the general public." For three years in thirty countries, Google's Street View cars collected data, including the content of personal emails, from wireless routers located in private homes and businesses. Several countries, including the U.K., Germany, Spain, and Canada, have conducted similar investigations and determined that Google violated their privacy laws. In the U.S., the Federal Communications Commission opened an investigation after EPIC filed a complaint, but the Commission has failed to announce a ruling. For more information, see EPIC: Google Street View. (Jul. 1, 2011)
  • Senator Leahy Introduces Bill to Update Digital Privacy Law: Senator Patrick Leahy (D-VT) has introduced the Electronic Communications Privacy Act (ECPA) Amendments Act to update the 1986 law for electronic mail and stored communications. Senator Leahy said "Since the Electronic Communications Privacy Act was first enacted in 1986, ECPA has been one of our nation’s premiere privacy laws. But today this law is significantly outdated and out-paced by rapid changes in technology . . ." The bill includes new provisions that clarifies access by government agents to locational data, but stops short of regulating the use of locational data by private firms. EPIC has said that safeguards for locational data are critical for users of new modern communications services. For more information, see EPIC: Wiretapping and Summary of Legislation. (May. 17, 2011)
  • Wiretaps Up by 20 Percent in 2007. According to the 2007 Wiretap report, federal and state courts issued 2,208 orders for the interception of wire, oral or electronic communications in 2007, compared to 1,839 in 2006. (Press release.) As in 2006, no applications for wiretap authorizations were denied by either state or federal courts. The total number of authorized wiretaps has grown in each of the five past calendar years, beginning in 2003. The 2007 Wiretap Report does not include interceptions regulated by the Foreign Intelligence Surveillance Act of 1978 or interceptions approved by the President outside the exclusive authority of the federal wiretap law and the FISA.
  • Electronic Surveillance Continues to Increase. According to a report (pdf) issued by the Administration Office of the United States Courts, state and federal courts authorized 1,773 interceptions of wire, oral, and electronic communications in 2005, another increase over the previous year. Only one application was denied by the courts. (May 2, 2006)

The Digital Telephony Law (CALEA)

On the last night of the 1994 session, Congress enacted the Communications Assistance for Law Enforcement Act (CALEA), sometimes called the "Digital Telephony" bill. CALEA requires telephone firms to make it easy to wiretap the nation's communication system. The bill faced strong opposition from industry and civil liberties organizations, but was adopted in the closing hours of Congress after the government offered to pay telephone companies $500,000,000 to make the proposed changes. EPIC opposed passage of the bill and believes that the government has failed to justify the $500,000,000 appropriation required.

As part of the final omnibus funding bill enacted in the last days of the 104th Congress, the Congress approved a provision allowing for funding the digital telephony bill from money reprogrammed from intelligence and law enforcement agencies.

Recent Developments

  • FCC Again Approves FBI's CALEA Requirements. The Federal Communications Commission issued an "Order on Remand" (PDF) on April 11 reinstating the mandated surveillance capabilities that were rejected by the D.C. Circuit Court of Appeals in 2000. (April 16)
  • Appeals Court Limits Use of New Surveillance Techniques. The U.S. Court of Appeals for the D.C. Circuit has ruled that law enforcement agencies must meet the highest legal standard before using new surveillance capabilities. The court decision came in a legal challenge filed by EPIC, other privacy groups and the telecommunications industry to invalidate technical surveillance standards issued by the Federal Communications Commission last year. The capabilities, which include cellular phone location tracking and surveillance of "packet mode" data, were ordered implemented by the FCC under the Communications Assistance to Law Enforcement Act (CALEA). Several other technical capabilities were completely rejected by the court.
  • Court of Appeals Hears CALEA Case. The US Court of Appeals for the DC Circuit had oral arguments on CALEA on May 18. The court heard from lawyers representing USTA, EPIC, FCC and the FBI. The court is expected to issue its ruling this summer.
  • Privacy Groups Challenge FBI Wiretap Standards. EPIC, ACLU and EFF have asked a federal appeals court to block new rules that would permit the FBI to dictate the design of the nation's communication infrastructure. The challenged rules would enable the Bureau to track the physical locations of cellular phone users and potentially monitor Internet traffic. The appellate brief (PDF version available) challenges an FCC order implementing the Communications Assistance to Law Enforcement Act (CALEA). See the joint press release for additional information.
  • FCC Okays FBI Cell Phone "Location Tracking" Request. In a statement released on October 22,1999, the Federal Communications Commission expressed its initial approval of FBI-proposed technical requirements that would enable law enforcement to determine the location of individuals using cellular telephones. A formal Notice was released on November 5. The Commission rejected other capabilities requested by the Bureau and deferred decisions on other issues, including surveillance of Internet communications. The initial decision came in a proceeding under the controversial Communications Assistance to Law Enforcement Act (CALEA).
  • FCC Approves FBI Wiretap Standards for Telecom Networks. EPIC has expressed its concern that a Federal Communications Commission (FCC) decision issued on August 27 could result in a significant increase in government interception of digital communications (see FCC press release for summary). In its decision, the FCC largely has adopted technical standards proposed by the Federal Bureau of Investigation (FBI) that would dictate the design of the nation's telecommunications networks. Included is a requirement that cellular telephone networks must have the ability to track the physical location of cell phone users.
  • EPIC Urges FCC to Protect User Privacy. EPIC, joined by the American Civil Liberties Union and the Electronic Frontier Foundation, has filed formal comments with the Federal Communications Commission urging it to reject FBI-proposed technical requirements that would -- among other things -- enable law enforcement to determine the location of individuals using cellular telephones. Also at issue is surveillance of Internet communications. The comments on implementation of the controversial Communications Assistance to Law Enforcement Act (CALEA) were filed on December 14. In a statement released on October 22, the Commission expressed its initial approval of the FBI proposal. A formal Notice was released on November 5.
  • Phone Companies Sue FBI Over Wiretapping Law. The U.S. Telephone Association, which represents over 1,200 local phone companies (including the Baby Bells), filed suit on August 19 against the FBI and DOJ over implementation of the Communications Assistance for Law Enforcement Act (CALEA).
  • Groups Ask FCC to Delay Wiretap Law. Industry and public groups filed petitions on May 8 asking the FCC to delay the implementation of CALEA. Comments filed by EPIC, ACLU & EFF asking for indefinite delay until controversy over standards is resolved.
  • Wireless Phone Companies Sue FBI for Wiretap Costs. The Cellular Telephone Industry Association and the Personal Communications Industry Association filed a lawsuit on April 27 against the DOJ and FBI. The companies say that the FBI's new regulations on CALEA unlawfully shifts the cost of paying for phone equipment upgrades for wiretapping from the FBI to the telephone companies.
  • FBI Issues Final Capacity Requirements. The Federal Bureau of Investigation sets out wiretap requirements for the nation's telephone system. Companies are expected to comply by October 1998. EPIC and other cyber-liberties groups have sent a letter to Congress and filed comments with the FCC asking for a review of the Bureau's actions. The groups say the FBI has acted in "bad faith" in seeking to implement a massive wiretapping scheme. Rep. Bob Barr (R-GA) has introduced the CALEA Implementation Amendments of 1998 which would delay implementation until 2000.
  • EPIC Urges Rejection of FBI Wiretap Initiative. In formal comments filed with the Federal Communications Commission on May 20, EPIC says the FBI's implementation of the Communications Assistance to Law Enforcement Act (CALEA) -- calling for the redesign of the nation's communications network to facilitate surveillance -- threatens fundamental privacy and constitutional rights.
  • Major Cyber-liberty Groups Call for FCC to Stop Wiretap Law Implementation. EPIC and other major cyber-liberties groups filed comments with the FCC on February 12 asking the FCC to stop implementation of the Communications Assistance for Law Enforcement Act.
  • EPIC, ACLU File Comments on CALEA. ACLU, EPIC and EFF filed comments with the Federal Communications Commission on December 12 calling for delaying the implementation of CALEA until October 2000.
  • New Report Reveals EU/FBI Global Surveillance Plans. A newly issued report by Statewatch reveals that the European Union and US FBI have been actively promoting agreements to ensure surveillance of all telecommunications networks. See the Privacy International Phone Tapping page for more information.

Funding Digital Telephony

Early Implementation of CALEA

Materials on the Enactment of CALEA

  • Office of Technology Assessment report "Electronic Surveillance in a Digital Age"
  • White House document obtained under FOIA shows Approval of President George Bush and the link between digital telephony and the Clipper Chip. (gif file)
  • EPIC Statement on CALEA enactment, October 1994.
  • EPIC's FOIA Wiretap Survey Case against the FBI for the surveys allegedly showing the need for the FBI Digital Telephony Proposal.
  • 1992 memos from the General Services Administration (GSA) showing that they opposed the Digital Telephony proposal because it could "adversely affect national security."

Other Wiretap Resources

Previous Top News

  • Electronic Surveillance at an All-Time High. According to a report issued by the Administration Office of the United States Courts, state and federal courts authorized 1,710 interceptions of wire, oral, and electronic communications in 2004, an increase of 19 percent over intercepts approved in 2003 and the greatest number ever authorized in a single year. Federal officials requested 730 intercept applications in 2004, a 26 percent increase over the number requested in 2003. No wiretap applications were denied last year. 2003 and 2004 are the only years that more secret surveillance warrants have been granted than federal wiretap warrants, which are issued only under a more stringent legal standard. (April 29, 2005)
  • 2003 Wiretap Report Released; No Requests Refused. The Administrative Office of the United States Courts has reported that state and federal courts authorized 1,442 interceptions of wire, oral and electronic communications in 2003, an increase of 6 percent over interceptions authorized in 2002. The agency also reported that federal officials requested 578 intercept applications in 2003, a 16 percent increase over those requested in 2002. No wiretap applications were denied last year. Although formal statistics have not yet been released, it is believed that secret foreign intelligence surveillance has increased dramatically during the same period. (April 30, 2004)
  • U.S. Customs Surveillance Records Lost in 9-11 Attacks. The number of federal and state police authorized wiretaps increased again this year, mostly due to drug investigations. Wired.com reports that the actual number of authorized wiretaps is likely to be higher than reported, since U.S. Customs surveillance records were lost in the destruction of the World Trade Center. It is not clear whether the results of the wiretaps were lost, or whether merely the records from which the reporting would be done--which would skew the results of the annual wiretap reports. (May 25, 2002)
  • FCC Again Approves FBI's CALEA Requirements. The Federal Communications Commission issued an "Order on Remand" (PDF) on April 11 reinstating the mandated surveillance capabilities that were rejected by the D.C. Circuit Court of Appeals in 2000. (April 16, 2002)
  • DOJ Issues Guidance on New Surveillance Powers. Within hours of the USA PATRIOT Act being signed into law, the Justice Department issued a field guidance memorandum (PDF) on the new anti-terrorism authorities approved by Congress. The memorandum does not address expanded powers under the Foreign Intelligence Surveillance Act; guidance in that area appears to be classified. Attorney General John Ashcroft announced that he has directed FBI and U.S. Attorney's offices "to begin immediately implementing this sweeping legislation." (Oct. 29, 2001)
  • Anti-Terrorism Bill Signed Into Law. On October 26, the President signed the USA-PATRIOT Act of 2001 into law. The Senate voted 98-1 to pass the Act, a "compromise" version of the various anti-terrorism bills, on October 25. This final congressional action followed 24 hours after the House voted 357-66 to approve the same version of the bill, based on H.R. 3108 and S. 1510. The final legislation includes a few changes: most notably, a sunset on the electronic surveillance provisions, and an amendment providing judicial oversight of law enforcement's use of the FBI's Carnivore system. However, it retains provisions vastly expanding government investigative authority, especially with respect to the Internet. (Oct. 26, 2001)
  • Congress Set to Consider Far-Reaching Terrorism Proposal. Congressional committees will hold hearings on Monday and Tuesday to consider broad legislation proposed by the Department of Justice that would, among other things, substantially expand government surveillance powers, including use of the controversial Carnivore Internet monitoring system. EPIC has prepared a detailed analysis of provisions in the proposed Anti-Terrorism Act of 2001 (PDF) that would affect communications and information privacy. EPIC urges Congress to carefully assess the need for new surveillance powers and to draw any possible changes narrowly to protect privacy and constitutional rights. In editorials, newspapers and magazines across the country have also endorsed that approach. (Sept. 24, 2001)
  • Appeals Court Limits Use of New Surveillance Techniques. The U.S. Court of Appeals for the D.C. Circuit has ruled that law enforcement agencies must meet the highest legal standard before using new surveillance capabilities. The court decision came in a legal challenge filed by EPIC, other privacy groups and the telecommunications industry to invalidate technical surveillance standards issued by the Federal Communications Commission last year. The capabilities, which include cellular phone location tracking and surveillance of "packet mode" data, were ordered implemented by the FCC under the Communications Assistance to Law Enforcement Act (CALEA). Several other technical capabilities were completely rejected by the court.
  • FBI System Takes a Bite Out of Privacy. The Federal Bureau of Investigation has a rolled out a new system to monitor private communications -- "Carnivore." The first public discussion of the system was contained in Congressional testimony delivered earlier this year. EPIC has filed a Freedom of Information Act request for details. See EPIC's Carnivore Page for declassified FBI documents and other information.
  • Electronic Surveillance for Criminal, National Security Up in 1999. According to a new report by the Administrative Office of the U.S. Courts, the number of State and Federal requests for wiretaps and bugs increased 2 percent in 1999, to a total of 1,350. Surveillance of new technologies and pagers accounted for over half of all requests. See the EPIC chart of wiretaps, 1968-1999. National Security (FISA) taps were also up in 1999, from 796 in 1998 to 886 in 1999. EPIC chart of FISA Taps, 1979-1999.
  • Court of Appeals Hears CALEA Case. The U.S. Court of Appeals for the DC Circuit had oral arguments on CALEA on May 18. The court heard from lawyers representing USTA, EPIC, FCC and the FBI. The court is expected to issue its ruling later this year.
  • Privacy Groups Challenge FBI Wiretap Standards. EPIC, ACLU and EFF have asked a federal appeals court to block new rules that would permit the FBI to dictate the design of the nation's communication infrastructure. The challenged rules would enable the Bureau to track the physical locations of cellular phone users and potentially monitor Internet traffic. The appellate brief (PDF version available) challenges an FCC order implementing the Communications Assistance to Law Enforcement Act (CALEA). See the joint press release for additional information.