The ACLU, however, says the judicial oversight of these surveillance tools is “procedural” rather than substantive. Unlike a wiretap, which requires law enforcement agencies demonstrate probable cause because it allows law enforcement to listen in or view the content of communications, pen registers and trap and traces only require that law enforcement agencies certify that the information is relevant to an ongoing criminal investigation.
The logic of this far laxer legal standard revolves around distinctions between monitoring the content of communications and monitoring their transmission, notes the ACLU. Since pen registers and trap and traces only record information about the communications, rather than the message communicated, the surveillance doesn’t rise to the level of intrusion that requires a probable cause warrant, according to the courts. Its a conclusion the ACLU disagrees with.
“The content/non-content distinction from which these starkly different legal requirements arise is based on an erroneous factual premise, specifically that individuals lack a privacy interest in non-content information,” argues the report. “Non-content information can still be extremely invasive, revealing who you communicate with in real time and painting a vivid picture of the private details of your life.”
When combined, total DOJ intercepts rose 64 percent between 2009 and 2011, according to the AP. This increasing frequency of government surveillance is a trend the ACLU has observed across all levels of government, pointing to a recent New York Times story on the 1.3 million government requests for customer information from cell phone carriers and its own investigation revealing cell phone tracking by law enforcement departments small and large.
♦ Photo courtesy of David Drexler/Flickr
♦Charts courtesy of the ACLU