Did ‘warrantless’ wiretaps increase under Obama?

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Obama’s record on civil liberties hasn’t been stellar, but a Huffington Post headline screaming that Warrantless Electronic Surveillance Surges Under Obama Justice Department seems to misunderstand the meaning of ‘warrantless’, and the piece merely repeats an ACLU press release that seems to make the same mistake.

From the release:

The reports that we received document an enormous increase in the Justice Department’s use of pen register and trap and trace surveillance. As the chart below shows, between 2009 and 2011 the combined number of original orders for pen registers and trap and trace devices used to spy on phones increased by 60%, from 23,535 in 2009 to 37,616 in 2011.

What are these ‘orders’ the ACLU refers to?

Well those would be court orders, otherwise known as warrants. The problems that the ACLU is trying to highlight are serious, but the reports they obtained don’t tell us anything about warrantless wiretapping which is when the administration bypasses the courts completely.

I work in the security field ,and I have some experience with ‘Lawful Intercept’ procedures after a group of customers on the receiving end of the warrants asked us to provide them with tools to help manage the process.

Obtaining a wiretap warrant of any type is intentionally easy. All that law enforcement needs to do is submit an affidavit to a court stating the justification. There are courts sitting for the sole purpose of approving requests 24 hours a day. Rejections are exceptionally rare, but the investigators are required to submit a justification knowing that the defense will attempt to use any imaginable defect in it to have evidence excluded.

The ACLU report attempts to draw attention to the fact that ‘non-content’ wiretaps are subject to a much lower legal requirement than ‘content’ wiretaps:

Because these surveillance powers are not used to capture telephone conversations or the bodies of emails, they are classified as “non-content” surveillance tools, as opposed to tools that collect “content,” like wiretaps. This means that the legal standard that law enforcement agencies must meet before using pen registers is lower than it is for wiretaps and other content-collecting technology. Specifically, in order to wiretap an American’s phone, the government must convince a judge that it has sufficient probable cause and that the wiretap is essential to an investigation. But for a pen register, the government need only submit certification to a court stating that it seeks information relevant to an ongoing criminal investigation.

That is an important concern, but it isn’t ‘warrantless’ wiretapping, which is a completely different situation when the interception takes place without any court process whatsoever. Warrantless wiretaps, or as I call them ‘unlawful intercepts’ have no controls whatsoever, and the design of the telephone system makes it ridiculously easy for anyone with access to the SS7 network to place one.

We know that the Bush administration engaged in unlawful intercept on an unprecedented scale in the wake of 9/11. What we don’t know (for certain) is whether the results of those intercepts were used to stop terrorism or abused for political purposes, and most importantly, whether they have stopped or still continue.

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