DOJ Describes Its Cybersurveillance (Sort Of)

WASHINGTON, D.C. -- The Justice Department's implementation of the Patriot Act may satisfy a congressional inquiry, but privacy advocates want specifics on how the feds are safeguarding privacy while fighting terrorism.

"We need to have a systematic knowledge of how surveillance powers are used," says Lee Tien, senior counsel for the Electronic Frontier Foundation, an advocacy group for civil rights online.

The House Judiciary Committee on Thursday publicly released the Justice Department's answers to 50 questions the committee had asked about its activities under the Patriot Act. Congress members wanted details about how the department is using the new surveillance tools it was granted after last year's terrorist attacks.

"I am satisfied that the Department of Justice has produced answers that are sufficient for the committee's oversight and legislative efforts at this time," says Committee Chair James Sensenbrenner (R-Wisconsin).

The report mirrored assurances by the Justice Department and law enforcement representatives, who recently told a Senate subcommittee that investigators have been able to gather information effectively while still respecting citizens' privacy.

But Tien is concerned about accountability, and criticizes the Justice Department's failure to maintain records of how it uses its new powers. Also, he is dissatisfied with the fact that the department gave the congressional committee only anecdotal answers that cite cases as examples, rather than complete numbers.

For instance, the Patriot Act extended some standard surveillance techniques from telecommunications to online communications. Notably, police can obtain a "pen register" order that allows them to retrieve a suspect's dialed phone numbers or, now, accessed URLs and e-mail addresses. The officers can use a trap-and-trace surveillance technique to record the sources of a suspect's incoming phone calls and, under the expanded power, electronic correspondence addresses, though not its content.

The Justice Department has used these techniques in the past year to trace the communications of terrorists, kidnappers who communicated their demands by e-mail, and identity thieves, according to the response to the Judiciary Committee's inquiry. But Justice did not say exactly how many times it has used the trap-and-trace devices.

Tien calls this lack of statistics "classic unaccountability."

The Patriot Act also gives ISPs permission to release certain private data if a person's life is in danger. The Justice Department does not have statistics on the number of times it has accessed such information, according to its report to the congressional committee. However, it does describe how this tool enabled investigators to track down a student who posted threats to bomb his high school on an electronic bulletin board.

"The general problem with this provision is that it puts the ISP in a very difficult position," Tien says. "If you have an FBI agent on you, and there is a serious threat ... that is pretty hard to contest."

Another privacy hazard is that the FBI is not restricted on how it can use the information once it has been obtained, Tien says.

"Law enforcement agents involved in a particular investigation have no operational need to keep track of information concerning whether electronic evidence was obtained from a service provider," says Daniel Bryant, an assistant attorney general and author of the Justice Department response. "Law enforcement has no reason to track this information."

Tien says the law should be changed to require such tracking. The Judiciary Committee inquiry is helpful but inadequate, he says.

"I don't believe that the issue should be left to political process. It should be built into the statute that these kinds of disclosures are logged," Tien says.

The EFF isn't the only organization uneasy about Patriot Act powers. The American Civil Liberties Union has launched a $3.5 million campaign to "promote a public debate about proposals and measures that violate civil liberties without increasing our security," according to Anthony Romero, ACLU's executive director. The organization even wants to repeal portions of the Patriot Act that it considers anti-civil liberties.