Here’s the only marginally good news about Congressman Edward Markey’s bombshell revelations last week about government prying into personal cellphone use: the American public and the US Congress now have our very first inkling of the scope of cellphone surveillance requests by law enforcement to telecommunication providers—1.3 million requests for personal data in 2011, according to the telecoms.
The truly bad news, however, is that Congress still has no idea of the scope of law enforcement surveillance. Congress is the body designated to provide oversight of the ways that government peers into our most private affairs. Yet the information that the proactive Markey was able to extract from the telecom providers represents just a fraction of the possible surveillance requests made by law enforcement, a blurry and partial accounting of a field that remains sprawling, unmapped and without rigorous oversight.
The problem begins at the level of Markey’s own worthy but limited investigation. In his capacity as co-chair of the Congressional Bi-Partisan Privacy Caucus, the Massachusetts Democrat queried nine mobile wireless carriers about their policies and practices for sharing their customers’ mobile phone information with law enforcement agencies. Leaving aside the fact that T-Mobile, one of the largest telecom providers, refused to share its numbers with Markey, the deeper and more troubling problem is that the investigation did not take into account all the law enforcement agencies involved in the snooping business. The reason: surveillance orders from the National Security Agency, Central Intelligence Agency and the Defense Intelligence Agency are sealed, meaning that telecom providers could only share information on requests from federal, state and local police—or, more specifically, the police, FBI, Secret Service, US marshals, postal inspectors and US Immigration and Customs Enforcement. It is therefore literally impossible to say how many cellphone data requests would have been tallied if the investigation had included requests to telecom providers by the NSA, CIA and DIA.
No less disturbing, cellphone companies represent only a sliver of the vast landscape of agencies and entities that government routinely taps for personal information. Remember, our data are recorded and archived every time we swipe a card at a subway turnstile, hold up our E-Z Pass at a tollbooth, use our credit or debit cards, interact with any broadband provider, take out a library book, request a disc from Netflix or sign in to Foursquare. But no Congressional body has publicly queried the transportation authorities, the banks or the cable companies, and it was only this week that Senator Al Franken began questioning the FBI and Facebook about their use of facial recognition technologies.
Even the entities that are intended to supply Congress with regular data about surveillance are providing incomplete and sometimes misleading information.
Consider the official 2011 wiretap report delivered to Congress by the Administrative Office of the United States Courts (AO) days before the Markey findings were released. The AO claims that “Federal and state applications for orders authorizing or approving the interception of wire, oral or electronic communications, known as wiretaps, dropped 14 percent in 2011, compared to the number reported in 2010.” This might be the case, but in failing to take other forms of surveillance into account, including requests to cellphone companies for personal data, the AO report tells a falsely optimistic version of the story.