Gap Between Wiretaps Reported By US Courts And Recipient Service Providers Continues To Grow

from the time-for-some-depressing-Venn-diagrams dept

Albert Gidari of Just Security/Center for Internet and Society has been looking into the US Courts' wiretap reports for 2014 and 2015. The problem with these reports is that nothing adds up. As he wrote for Just Security last year, there's a huge discrepancy between the numbers reported by the US Courts Administrative Office and those reported by the service providers complying with the orders.

These numbers should be much closer than they are. If a wiretap is issued by a court, then the recipient service provider should report being served with one wiretap order. But that's not what has happened. The US Courts AO reported 3,554 federal and state wiretap orders in 2014. Service providers, however, reported receiving 10,712 wiretap orders for that same year.

As Gidari pointed out in 2015 (examining the 2014 wiretap report), there's not much that explains this discrepancy.

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.

The same goes for orders that expired after the end of the reporting period. As Gidari notes, anything not counted by the courts the previous year would show up on next year's report and be negated by the lack of a new order on service providers' reports.

The 2015 Wiretap Report is no better. And the gap appears to be increasing.

The AO now reports that 4,148 wiretaps were authorized in 2015, a 17% increase over 2014. Twentysix of those authorized wiretaps apparently were never installed, and therefore probably do not appear in provider transparency reports. The four major carriers (AT&T, Sprint, Verizon and T-Mobile) reported a total of 11,633 wiretaps in 2015. Thus, provider numbers reflected an increase in surveillance as well, but only by about 8%. So the three-fold delta from 2014 remains while the actual number of wiretaps reported by providers only increased half as much as the percentage increase reported by the AO. That is hard to explain.

As transparency reports from carriers and service providers become even more detailed, the gap in reporting becomes even harder to explain. It could be that carriers count each wiretap installed as another instance, even if it's a dozen accounts targeted with a single order. It could be that, but it's highly unlikely. Facebook -- one of the more recent additions to wiretap reporting -- states it this way in its transparency report.

Facebook reported that it received 296 wiretap orders that affected 399 user accounts in 2015.

While companies are moving towards greater transparency, the US court system seems to be stuck in the same place. There's really only one way to explain this gap containing thousands of "missing" wiretap orders: underreporting by the those handing in numbers to the Administrative Office. Considering the huge potential for misuse and abuse, this apparent underreporting isn't acceptable. The Administrative Office is investigating, but so far has yet to report any results from its digging.

Once again, it seems a reporting process ordered by Congress but left to another agency to enforce (with zero consequences for noncompliance) is resulting in discrepancies between the "official" numbers and those reported by the private sector. It looks and feels just like the FBI's collection of officer-involved shootings: incomplete, inaccurate, and wholly dependent on government entities self-reporting data they'd rather not make public.

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Filed Under: numbers, surveillance, telcos, wiretap report, wiretaps

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  1. icon
    DannyB (profile), 1 Dec 2016 @ 12:16pm

    It's just an Anomaly

    Or a simple accounting error. The US Courts are not including the number of fraudulent wire tap orders that have forged signatures of judges. Perhaps because the courts do not have copies of the fraudulent wire tap orders.

    reply to this | link to this | view in thread ]

  2. identicon
    Christenson, 1 Dec 2016 @ 12:19pm

    On the gripping hand...

    Suppose the administrative office numbers are accurate, and some of those orders arriving at carriers are fraudulent?

    We've already seen people willing to defraud the courts in respect of DMCA takedown orders, we've already seen the FBI unwilling to reveal it's favorite toy, the stingray, so it's a very short step...

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 1 Dec 2016 @ 12:34pm

    Is it possible for one case to have one warrant that goes to multiple providers?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 1 Dec 2016 @ 12:57pm

    Can't even trust the courts.

    No wonder the courts rarely pursue perjury charges against those giving false testimony. And why should they? Their idea of "truth", after all, seems to be a little, umm, "lacking".

    Sometimes it seems like *everyone* in the government is a lying dirtbag.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 1 Dec 2016 @ 2:38pm

    Re: Can't even trust the courts.

    seems? I challenge you to find me one that isn't a lying dirtbag?

    reply to this | link to this | view in thread ]

  6. icon
    Groaker (profile), 1 Dec 2016 @ 3:34pm

    The numbers are clearly incorrect. The reputed under report is ridiculous. Only three? A hundred would be more far more likely.

    Add to that the number of taps that are sealed under gag orders, or made without the knowledge of any one except other LEOs.

    reply to this | link to this | view in thread ]

  7. icon
    art guerrilla (profile), 1 Dec 2016 @ 3:47pm

    Re: On the gripping hand...

    have you gone crazy eddie ? ? ?
    conform to your role ! ! !

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 1 Dec 2016 @ 7:01pm

    A possible explanation lies in another article posted today, regarding the 'Rule 41' change. With the 'update' one warrant can be used to search thousands of computers, it's possible that something similar is going on here, where a single request is made to the government, and then turned around and used to demand access to multiple users/accounts.

    In that way both sides would technically be telling the truth, though the government numbers would be just a titch shady by hiding just how large the scope of demands are.

    reply to this | link to this | view in thread ]

  9. icon
    DannyB (profile), 2 Dec 2016 @ 7:01am


    Is it possible for providers to be getting fraudulent warrants that no judge has signed or even seen?

    reply to this | link to this | view in thread ]

  10. identicon
    Bruce C., 2 Dec 2016 @ 8:35am

    Re: On the gripping hand...

    Does the US Court Administrative office have access to orders originating from FISA? Or are those counts only from the normal courts.

    The idea that 2/3 of court-ordered wiretaps originate from FISA is rather disturbing, but unfortunately plausible.

    reply to this | link to this | view in thread ]

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