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ACLU Sues DOJ For Digital Surveillance Data
By Aaron Koepper | May 24, 2022 8:56 am

The American Civil Liberties Union filed a Freedom of Information Act lawsuit against the Justice Department Wednesday to compel the release of electronic surveillance data dating back to 2010.

In the original FOIA request, dated Feb. 15, 2012, the ACLU requested data on pen register and trap and trace devices. Pen registers record all numbers called from a particular phone, according to the suit, which was filed Wednesday in the District Court of Southern New York. Trap and trace devices allow recording of”non-content” information on a particular communications line, such as “to” and “from” lines of emails and IP addresses of websites visited.

The ACLU directed the department to obtain records from its Criminal Division, the Federal Bureau of Investigation, the Drug Enforcement Administration, the U.S. Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Office of Information Policy. To date, the ACLU says it has only received data from the USMS and OIP, and the OIP’s response is incomplete. The USMS disclosed 100 of 1,463 pages requested by the ACLU and the agency requested payment for more, claiming the material is not in the public’s interest. The OIP disclosed 14 pages and the other agencies have released none, according to the suit.

The Pen Register Act of 1986 requires the Attorney General annually submit data to Congress for these devices, but no filings have been made since 2010 and the lawsuit notes that the department released data for 2004 to 2008 in 2009 after releasing no data for five years. The department also released no data between 1999 and 2003 for releasing data the following year, the lawsuit states.

The ACLU is particularly interested in this data because pen registers and trap and trace devices were ruled by the Supreme Court in 1979 as outside Fourth Amendment protection. In the case, the defendant had dialed phone numbers knowing that the phone company would have a record of it.

“Law enforcement can simply file a certification with a court stating that the information they are likely to obtain is ‘relevant to an ongoing criminal investigation.’ In other words, the Pen Register Act does not authorize judges to weigh the substantive merits of an officer’s request,” an ACLU blog post on the suit states. “If officers fulfill the procedural requirements by submitting the certification, judges have no leeway to deny these orders.”

The orders for these devices have doubled from 2006 to 2009, from 11,000 to more than 24,000, with no data released since then. Before 2000, that number was under 10,000.

A spokesperson for the Justice Department could not immediately be reached for comment.

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