The Law Enforcement Surveillance Reporting Gap

Abstract

Third party facilitated surveillance has become a routine tool for law enforcement agencies. There are likely hundreds of thousands of such requests per year. Unfortunately there are few detailed statistics documenting the use of many modern surveillance methods. As such, the true scale of law enforcement surveillance, although widespread, remains largely shielded from public view.Prior to the widespread adoption of the Internet and mobile phones, law enforcement agencies’ use of third party facilitated electronic surveillance was largely limited to real-time interception of communications content ("wiretapping") and non-content data (through the use of "pen register" and "trap and trace" orders). In order to increase its ability to perform effective oversight, Congress mandated that annual reports be created documenting the use of these surveillance powers. These reports are intended to enable policy makers as well as the general public to determine the extent to which such surveillance methods are used, and in the words of Senator Patrick Leahy, provide a "far more reliable basis than anecdotal evidence on which to assess law enforcement needs and make sensible policy in this area."The existing surveillance statistics might be sufficient if law enforcement agencies’ surveillance activities were limited to wiretaps and pen registers. However, over the last decade, law enforcement agencies have enthusiastically embraced many new sources of investigative and surveillance data for which there are no mandatory reporting requirements. As a result, most modern surveillance now takes place entirely off the books and the true scale of such activities, which vastly outnumber traditional wiretaps and pen registers, remains unknown. In this article, I examine the existing electronic surveillance reporting requirements and the reports that have been created as a result. Some of these have been released to public, but many have only come to light as a result of Freedom of Information Act requests or leaks by government insiders. I also also examine several law enforcement surveillance methods for which there are no existing legally mandated surveillance reports. Finally, I propose specific legislative reporting requirements in order to enable some reasonable degree of oversight and transparency over all forms of law enforcement electronic surveillance.