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Surveillance Tools at Issue in Lawsuit

By Paul Schwartz, The Wall Street Journal

The American Civil Liberties Union will be in federal court Tuesday as it seeks to force the U.S. Department of Justice and other federal agencies to detail how often they use surveillance tools that capture the email addresses contacted, phone numbers called and websites visited by a person.

Such tools are known as pen register and trace-and-track technology, and while the government believes they're critical for law enforcement, privacy advocates are concerned about the lack of transparency on how often the searches are used.

The ACLU says the Justice Department has failed to publicly report, as required annually by federal law, the use of such technology since 2009 and has previously failed to meet it reporting obligations.

"Americans have strong privacy interest in the information that such surveillance techniques capture, including the persons they call on their telephones and the identities of those they email," ACLU lawyer Catherine Crump said in the lawsuit, which was filed in May. They "With such private information at stake, Americans also have a clear interest in knowing how often and under what circumstances the DOJ is compiling government lists of such information."

The ACLU, which made a public-records request in February under the Freedom of Information Act and a second one in June, filed the suit in Manhattan federal court to force the Justice Department to release data on searches in 2010 and in 2011 by the department's criminal division. Several other agencies also are targeted in the suit, including the Drug Enforcement Administration, the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Two agencies have made limited disclosures so far: the U.S. Marshals Service and DOJ's Office of Information Policy, the ACLU said.

In its last public disclosure three years ago, the DOJ reported the use of such surveillance more than doubled between 2004 and 2009; up from 10,885 searches to 23,895 searches, the ACLU said in its lawsuit. It was used 18 times as frequently in 2009 as wiretaps, which are more closely monitored, the ACLU said.

A spokeswoman for the U.S. attorney's office in Manhattan, which is arguing the case, declined to comment Sunday. In court papers, the Justice Department said "exceptional circumstances exist that necessitate additional time" in processing the ACLU's request. The agency also claims some of requested documents are exempt from disclosure.

Federal agencies aren't required to seek a search warrant or to have probable cause that a crime has been committed to conduct such searches.

Paul M. Schwartz, a law professor and director of the Berkeley Center for Law and Technology, said the use of pen registers and trap-and-trace technology is likely up because the public is spending more time on smartphones and the Internet. It's not like the old days when an individual had a phone at their office and home, not on their persons at all times, he said.

The data available to agencies is much broader than when investigators tracked phone calls to and from a single line, he said. "It's not surprising they're going to make use of it," he said.

"We're online more. We're engaged in telecommunication many, many more hours a day," he said.

The technology at issues doesn't capture the content of an email or a telephone conversation; it just captures the phone numbers or email addresses contacted, the ACLU said. However, such data can shed light on a person's political associations, religious beliefs, close friends and topics of personal interest "during sessions of private reading and research," the group said. 7/15/2012