For the first time, the federal government acknowledged its failures in the oversight of surveillance carried out by law enforcement agencies. Activists have pointed out the flaws in the system for years.
The Federal Judicial Center, the research branch of the US judiciary, conducted a study that found out that the federal court system’s Wiretap Report is full of inaccuracies.
The Wiretap Report, released annually, compiles information on the interception of communications by local and federal law enforcement.
Every year, all state and federal judges are required to report all the wiretaps orders they approved, Markup reported. Prosecutors are also required to report all the wiretap orders they request. The information is collected by the Administrative Office of the US Courts. The office uses the data to compile the Wiretap Report, which is sent to Congress for lawmakers to make informed decisions on law enforcement, data privacy, and surveillance issues.
For about two decades, legal experts and activists have criticized the inadequacies and inaccuracies of the Wiretap Report. Retired lawyer Albert Gidari, also a former Stanford Center for Internet and Society director of privacy, has been speaking out against the report since 2005.
In 2017, he highlighted the inaccuracies of the report in a blog post, by noting that while the report only recorded 3,554 phone wiretaps, carriers had reported receiving more than 10,000 wiretap orders.
“It’s not the sexiest issue that faces the country, but it’s still a really important one, especially in a world where everything is collected,” Gidari said to The Markup. “Our very privacy foundations are really at risk.”
The study also found out that the reporting requirements are not up to date with current technology, meaning the use of devices like stingrays is not reported.
The Wiretap Report became a legal requirement in 1968, at a time when the main modes of communication were faxes and landline phones. While the report covers phone call surveillance, it says nothing about phone data, text messages, online calls, and device location. Additionally, it does not cover more sophisticated methods of surveillance like stingray devices and geofence warrant requests.
“That type of surveillance is not being entered in a wiretap report, and it probably couldn’t be under current legal authorities,” Stephen Wm. Smith, a retired federal magistrate judge and a former director of Fourth Amendment and Open Courts at Stanford’s Center for Internet and Society, said. “We need to update our other surveillance laws to require reporting on the same level as wiretap reporting.”
The study followed a 2017 letter by Sen. Ron Wyden (D-OR) to the policy-making body of the judiciary, the Judicial Conference, about more transparency in electronic surveillance. Wyden said he would introduce legislation requiring the Wiretap Report to be updated and other similar reports on other types of surveillance.
“The wiretap report is a relic from the last century that reports on surveillance of pagers and fax machines, instead of use of modern surveillance technology, like malware and stingrays,” Wyden said in an email to The Markup. “The courts deserve a lot of credit for taking on the process of updating the wiretap reports, but it is clear that Congress will also need to pass a new law requiring annual reports for other forms of surveillance, such as location tracking and demands for data stored in the cloud.”
The study was conducted between 2019 and 2021. It involved a set of focus groups and the surveys were divided into two groups, non-judiciary stakeholders (lawyers, academics, congressional staff) and judiciary stakeholders (judges and prosecutors).
Both groups agreed that the Wiretap Report should be updated to reflect advancements in surveillance technologies and better enforcement to ensure that it is more accurate.
Prosecutors noted that there was a lack of training on how to file reports. Also, there is no penalty for filing the reports wrongly or inadequately.
“There is no feedback from the Administrative Office concerning errors or omissions on the submitted forms. Without feedback, there is no accountability, and the errors and omissions are likely to persist,” the study said.
Furthermore, the Administrative Office of the US Courts does not have enforcement capabilities. Therefore, the participants of the study recommended that lawmakers should do something to give the Administrative Office enforcement powers, such as the ability to impose fines for violation of the reporting legislation.