Last week—on the Thursday before a major holiday weekend—the annual Wiretap Report was finally released by the Administrative Office of the U.S. Courts, fully two months behind schedule (the first time in over a decade it’s been so late). While we often focus on the growth of the surveillance state in the context of national security and the War on Terror—such as foreign intelligence wiretaps, which aren’t counted in this report—it’s clear that surveillance is on the rise for ordinary law enforcement purposes as well. State and federal investigators obtained 3,194 wiretap orders in 2010, an increase of 34 percent over the previous year, and a whopping 168 percent increase over 2000. Only one wiretap application was denied—which you can choose to take as evidence that law enforcement is extremely scrupulous in seeking applications, or that judges tend to rubber stamp them, according to your preferred level of paranoia. Just half the states reported any wiretaps, and nearly 68 percent of the total 1,987 state wiretaps were attributable to just three states: California, New York and New Jersey.
The average wiretap order swept up the communications of 118 people (since, of course, each individual target converses with many people, including many innocent people). If there were no overlap between wiretap orders, that would imply 376,892 people affected. Since it’s common for multiple orders to be sought as part of a single investigation, however, many of the same people are presumably being counted as having been caught under more than one wiretap order. Even on the wildly charitable assumption that only a third of those were unique individuals, though, that would still be well over 125,000 people spied upon, many innocent of any wrongdoing.
Though such criminal intercepts are supposed to be “minimized” in realtime, to prevent the recording of innocent conversations, only 26 percent of intercepted communications contained incriminating material—which is to say, nearly three-quarters were innocent communications unrelated to criminal activity. (It’s possible some of these were partial intercepts discontinued once investigators realized the communication wasn’t pertinent—the report doesn’t make that clear.)
It’s worth bearing in mind here that the nature of wiretaps, as opposed to conventional physical searches, is that they always involve invading the privacy of somebody other than the target named in the warrant—indeed, as the numbers show, very many people. You have to wonder what we’d think if traditional physical search warrants permitted police to rifle through the belongings of dozens of innocent people for each genuine criminal.
Still, this invasive technique is still reserved for investigating the most serious violent crimes, right? Alas, no: For 84 percent of wiretap applications (2,675 wiretaps), the most serious offense under investigation involved illegal drugs. Further proof, if proof were needed, that privacy suffers enormous collateral damage in our failed drug war. Drugs have long been the reason for the vast majority of wiretaps, but that trend, too, is on the upswing: Drug cases accounted for “just” 75 percent of intercept orders in 2000.
Can the boom in surveillance orders be explained by the proliferation of new digital communications technologies? Nope again: 97 percent of wiretaps were for (mostly cellular) telephones, not electronic communications like e-mail or instant messaging. That might seem surprising, but because copies of Internet communications typically ended up stored on a server somewhere (think Gmail), our outdated laws permit those to be obtained subject to a much lower standard than is required for realtime wiretaps—in many circumstances, mere “relevance” to an investigation rather than the traditional “probable cause.” Because there are no reporting requirements for those orders, we literally have no idea of the true scope and scale of such electronic spying.
Finally, since the FBI continues to demand that telecoms be subject to invasive technological mandates, complaining that their lines are at risk of “going dark” because of encryption technology, it’s worth noting that wiretaps encountered encryption only six times, all in state-level investigations. In all of those cases, police were nevertheless able to obtain the unencrypted communication.