Public disclosures regarding the otherwise secret wiretaps under the Foreign Intelligence Surveillance Act have been the focus of news reports, criminal investigations, and international intrigue in recent weeks. But the Administrative Office of Courts annually report the other wiretaps ordered by the federal and state judiciary.
According to the report, “in calendar year 2012, a total of 3,395 orders authorizing the interception of wire, oral, or electronic communications, or wiretaps, were approved by state and federal judges,” according to the report. Only three percent of the wiretaps involved wires.
For the 2012 reporting period, January 1, 2012 to December 31, 2012, 97 percent of all wiretaps were authorized for “portable devices,” a category that includes cellular telephones and digital pagers. In addition, 87 percent of all 2012 applications for intercepts cited illegal drugs as the most serious offense under investigation. As of December 31, 2012, a total of 3,743 persons had been arrested and 455 persons had been convicted as a result of interceptions reported as terminated.
The Administrative Office of the Courts points out that it is not authorized – or permitted – to include FISA-approved wiretaps. Equally importantly, the report also reminds the public that non-content data does not need a warrant. Instead pen register data about the nature of the call and the connection to the call requires a much lower legal standard to collect the data. It merely needs to be relevant to the investigation.
A Pen Register records telephone numbers called from a particular phone. also records the date, time, and length of calls. Note that this is information that is already gathered for billing purposes by a communications service provider.
A Trap and Trace Order records the telephone numbers of telephones that are used to place calls to a particular phone. (i.e. Makes a log of incoming .) Note that information of this sort is not gathered in the . – Berkman Center
There is no security reason that these orders are not surveyed. In addition, the report points out that no report from a court to the Administrative Office is necessary if “an order is issued with the consent of one of the principal parties to the communication.”
The use of wiretaps and the proportion of wiretaps in drug investigations to the exclusion of most other crimes should also raise some provocative public policy questions. Regardless of whether the information being collected should remain private, there is no question that the information about the process and scope of these investigations should be incorporated into public policy development.