Tag: law enforcement agencies

Collecting Dots and Connecting Dots

As Jeff Stein notes over at the Washington Post, the declassified summary of the Senate Intelligence Committee’s report on the Christmas underpants bomber ought to sound awfully familiar to anyone who thumbed through the 9/11 Commission’s massive analysis of intelligence failures. Of the 14 points of failure identified by the Senate, one pertains to a failure of surveillance acquisition: the understandably vague claim that NSA “did not pursue potential collection opportunities,” which it’s impossible to really evaluate without more information. (Marc Ambinder tries to fill in some of the gaps at The Atlantic.)  The other 13 echo that old refrain: Lots of data points, nobody managing to connect them. Problems included myopic analysis—folks looking at Yemen focused on regionally-directed threats—sluggish information dissemination, misconfigured computers, and simple failure to act on information already in hand.

Yet you’ll notice that in the wake of such failures, the political response tends to be heavily weighted toward finding ways to collect more dots.  We hear calls for more surveillance cameras in our cities, more wiretapping with fewer restrictions, fancier scanners in the airport, fewer due process protections for captured suspects. Sometimes you’ll also see efforts to address the actual causes of intelligence failure, but they certainly don’t get the bulk of the attention.  And little wonder! Structural problems internal to intelligence or law enforcement agencies, or failures of coordination between them, are a dry, wonky, and often secret business. The solutions are complicated, distinctly unsexy, and (crucially) don’t usually lend themselves to direct legislative amelioration—especially when Congress has already rolled out the big new coordinating entities that were supposed to solve these problems last time around.

But demands for more power and more collection and more visible gee-whiz technology?  Well, those are simple. Those are things you can trumpet in a 700-word op-ed and brag about in press releases to your constituents. Those are things pundits and anchors can debate in without intimate knowledge of Miroesque DOJ org charts.  In short, we end up talking about the things that are easy to talk about.  We should not be under any illusions that this makes them good solutions to intel’s real problems. Hard as it is for pundits to sit silent or legislators to seem idle, sometimes the most vital reforms just don’t make for snazzy headlines.

DoJ Fails to Report Electronic Surveillance Activities

Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content - who is talking to whom, how often, and for how long.)

The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:

The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).

EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.

It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.