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Wiretap Numbers Don’t Add Up

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Last week, the Administrative Office (AO) of the US Courts published the 2014 Wiretap Report, an annual report to Congress concerning intercepted wire, oral, or electronic communications as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. News headlines touted that the number of federal and state wiretaps for 2014 was down 1% for a total of 3,554. Of these, there were few involving encrypted communications; and for those, law enforcement agencies were in most cases able to overcome the encryption. But there is a bigger story that calls into question the accuracy of the all of the prior reports submitted to the AO and the overall data provided to Congress and the public in the Wiretap Reports.

Since the Snowden revelations, more and more companies have started publishing “transparency reports” about the number and nature of government demands to access their users’ data. AT&T, Verizon, and Sprint published data for 2014 earlier this year and T-Mobile published its first transparency report on the same day the AO released the Wiretap Report. In aggregate, the four companies state that they implemented 10,712 wiretaps, a threefold difference over the total number reported by the AO. Note that the 10,712 number is only for the four companies listed above and does not reflect wiretap orders received by other telephone carriers or online providers, so the discrepancy actually is larger.

What can possibly account for this difference? The carriers each report the demands they received and implemented, and they should only receive and implement wiretap orders that have been approved by a court. On this issue, trust the carriers — they scrutinize every wiretap order carefully and implement them exactly as instructed for the number of days authorized. A wiretap can be authorized for up to 30 days, and it can be extended for another 30 days. The carrier reports do not indicate how many wiretap orders were extended. The Wiretap Report says “1,532 extensions were requested and authorized in 2014, a decrease of 28 percent.” So even if half of the carrier reported orders were extended once and then treated as separate orders in the carriers’ transparency reports (the Wiretap Report would treat an extended order a single order), the numbers are still off by more than two­fold.

But what about the fact that federal and state prosecutors are required to submit reports to the AO by March 31 on wiretap orders they applied for that expired during the previous calendar year? This means orders received by carriers in December 2014 would be reported in their transparency reports. But if the orders didn’t expire in 2014, they would not be included in the Wiretap Report. That data would instead be reported in the following year’s Wiretap Report, so the 2014 Wiretap Report actually includes orders approved in 2013 that expired in 2014. Therefore, the difference between reporting wiretaps terminated in 2014 in the Wiretap Report as opposed to reporting orders implemented in carrier transparency reports largely is a wash so to speak in the overall reporting and certainly not a significant reason for the apparent overall discrepancy.

So what accounts for the huge gap in reporting? That is a question Congress and the AO should be asking prosecutors and judges who are required by law to make complete and accurate reports of the number of wiretaps conducted each year. Are wiretaps being consistently under­reported to Congress and the public? Based on the data reported by the four major carriers for 2013 and 2014, it certainly would appear to be the case.

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About the Author

is the Director of Privacy at Stanford Law School's Center for Internet and Society. You can follow him on Twitter (@agidari).