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Privacy watchdog groups and members of Congress are making grim guesses about how often the FBI peeks into records of U.S. citizens' Internet activity and phone calls.

But because the Department of Justice has blocked much of the content of its reports, the watchdogs can't get enough information to draw conclusions.

The Justice Department does release the number of surveillance orders approved by a closed court established in 1978 by the Foreign Intelligence Surveillance Act. The FISA court, which has jurisdiction over noncitizen criminal suspects, is composed of 11 federal district judges who rotate duties every seven years.

According to the FISA court's own records, spying orders approved by the secret court jumped 30 percent between 2001 and 2002. However, federal and state court orders approving surveillance dropped by 6 percent, say recently released government reports.

It's impossible to glean from this data exactly how many people, hard drives, or Web site visits are being monitored. But the conclusion that some privacy advocates have come to is that the Justice Department is dispensing with normal procedure and going straight to the foreign-intelligence court.

Avoiding Oversight?

The government is using secret orders for cases that should normally fall under the other category, says Jameel Jaffer, a staff attorney for the American Civil Liberties Union.

The Patriot Act of 2001 allows the government to secretly monitor the recipient names and subject lines of suspects' e-mail messages and to seize certain personal records--which could include library books, credit card receipts, and medical histories.

"Even if the FBI never abuses these powers, the powers are so broad on the books that they will inevitably create a chilling effect that would discourage people from exercising their First Amendment rights," Jaffer says.

Government searches of peoples' electronic communications and property have been steadily rising since the early 1990s, the watchdog groups point out. Domestic surveillance nearly tripled and FISA orders nearly doubled in the past decade, according to the court's own reports. Between 1992 and 2002, domestic wiretaps increased from 350 to 1358. In the same years, orders under FISA grew from 484 to 1228, according to government records.

Some of the increase is attributable to increased use of new devices that can be monitored. "Portable devices" such as cell phones and pagers have comprised an average of 68 percent of domestic surveillance since 2000, when the new category was added.

"The threat that the government may engage in surveillance because you borrow a particular book from the library, or because you join a particular organization, or because you visit a particular Web site will dissuade people from exercising their First Amendment rights," Jaffer says.

Sunshine Efforts

The ACLU recently lost a suit seeking more information about wiretaps. The ACLU had invoked the Freedom of Information Act to demand that the Justice Department release documents detailing its surveillance practices.

The ACLU wanted to know if and how many times the Justice Department obtained library or bookstore records of patrons' reading habits, eavesdropped on U.S. citizens, or tapped the phone calls of noncriminal suspects. But the court upheld the Justice Department's position that making such information public could hamper investigations and threaten national security.

The FOIA may not be the best route for the public to get such information, Jaffer says now. The ACLU is pursuing legislative fixes, and is watching two such "sunshine" bills now before Congress.

Congress has also requested reports on how the Justice Department uses the Patriot Act. The response has not entirely satisfied some citizens' groups, however.

The recent rise in surveillance approved by the FISA court--which targets only non-Americans--is due to the war on terrorism, and has helped to prevent subsequent attacks on U.S. soil, say Justice Department representatives.

Attorney General John Ashcroft, testifying recently before the House Judiciary Committee for the first time since September 2001, said the government needs more powers to fight terrorism and is seeking to extend the Patriot Act past its 2005 expiration date.

But Ashcroft did not address what kinds of records the government could subpoena under that law.

Watchdog Legislation

Under a bill to be introduced soon by Representatives John Conyers (D-Michigan) and Joseph Hoeffel (D-Pennsylvania), the Justice Department would have to publicly report each year how many people it wiretaps.

"There has been too much secrecy and too much 'trust me' rhetoric from the attorney general," Hoeffel says.

The Senate is considering a similar bill, introduced in February.

The Domestic Surveillance Oversight Act (S. 436) plans to "assess over time whether the government has turned more of its powerful surveillance techniques on its own citizens, as opposed to non-U.S. persons," says Senator Patrick Leahy (D-Vermont), who cointroduced it.

"I always feel very uncomfortable" about government surveillance, says Senator Daniel Inouye (D-Hawaii), a cosponsor of the bill.

Leahy was joined in introducing the bill by Senators Charles Grassley (R-Iowa) and Arlen Specter (R-Pennsylvania). The measure is in the Senate Judiciary Committee.

If the bill becomes law, it would also require annual reports about how many citizens' financial, library, and educational records the Justice Department seized or read. Grassley says it is intended to circumvent the "roadblocks" to transparency set up by the Justice Department and the FBI.

If the Justice Department releases more details of its investigations, "that chill will disappear," ACLU's Jaffer says. "People would visit Web sites and join organizations they're afraid of right now."

Fostering Fears

The Justice Department's reluctance to release more data "only allows people to speculate and create nervousness and shrill commentary, when most of us just want the facts," says Beryl Howell, a surveillance law specialist at Stroz Friedberg in Washington, D.C. The fears expressed are unfounded and irrational, says Howell, who was formerly counsel to the Senate Judiciary Committee.

"They have a conclusion that somehow there have already been infringements upon our civil liberties, and they try to create a picture of this growing Big Brotherism," says Mark Corallo, a Justice Department spokesperson, of the charges.

The multipage statements on wiretaps and searches approved by the open courts might surprise those people who fear that the government is dipping into and out of their e-mail messages and eavesdropping at any time, Justice Department representatives say.

Government agents are targeting only suspected criminals, Corallo says.

Media attention and myths in popular culture might lead people to think that the FBI has been planting millions of bugs around the country, Howell says.

"It should give comfort to the American people that electronic surveillance is not running amok and out of control. If you told them there are less than 1500 [wiretaps], I think they'd be shocked. There are more murders than that in the United States," she says.

Though critics worry that the FBI will entrap innocent people under FISA, Corallo says the government established the secret court to prevent the type of FBI and CIA abuses performed during the Cold War.

The 1978 law established checks and balances and limited spying in ways that go beyond the protection of the Constitution, he says. And that balance is a goal of both the system's critics and its advocates, even if their approaches differ.