IMPLICATIONS OF THE LATEST ANNUAL WIRETAP REPORT
Every July the Administrative Office of the U.S. Courts reports on the wiretaps conducted by the government in the prior year. The annual wiretap report makes the public aware of the surveillance performed in their name. It also provides guidance for communications service providers, whose networks facilitate the activities.
What does the 2014 Wiretap Report reveal about the communications industry’s role in the surveillance process?
The Demand for Wiretaps Remains About as High as Ever
The 2014 Wiretap Report states that the total number of federal and state wiretaps in 2014 fell one percent since 2013. That is a slight variation from the ten-year trend, which produced a 78% increase in wiretaps from 2004 to 2014.
The actual number of 2014 wiretaps was only 3,554. But the courts define “wiretap” to include lawful intercepts that capture both the content of a suspect communication (a phone conversation or email) and the related metadata (the phone numbers or IP addresses, along with the time, date and duration of the communication). Metadata-only intercepts are far more numerous. The term “wiretap” is also limited to criminal investigations, as opposed to national security cases.
Government surveillance includes not only lawful intercepts, which occur in real-time, but the collection of stored communication records (e.g. copies of a suspect’s past phone bills). In a given year a large communications carrier may receive tens or hundreds of thousands of records requests.
So the Wiretap Report surveys only part of the surveillance landscape.
Most Wiretaps are Performed in High-Population Areas
The greatest need for wiretaps appears in the most populated areas. The highest volumes arise in New York, Florida and California. Lower volumes are in states like Colorado, Texas, Kansas, Wisconsin, Illinois, Pennsylvania and New Jersey. Some low-volume states are Montana, Idaho, and North Dakota.
Service providers may use this information for planning purposes. The more your subscriber base expands, the more wiretap orders (and other law enforcement requests) you should expect to receive. Likewise, the more switches you add to your network the more equipment you will need to comply with the CALEA (lawful surveillance) mandate.
Most Wiretaps are Conducted on Voice Networks
Ninety-three percent of the 2014 wiretaps were conducted on voice networks. Within the voice category most intercepts were done on wireless networks. That makes sense considering the advantages of wireless calling. Crime rings have the same communication needs as legitimate businesses with mobile workforces.
As criminals and terrorists continue migrating to broadband networks we should see more wiretap orders delivered to Internet service providers. However, broadband intercepts are more difficult for law enforcement to implement. This is especially true for many state and local law enforcement agencies, which lack the advanced surveillance expertise of the FBI or DEA.
The Growth of Encryption May be Reducing the Number of Wiretaps
Between 2013 and 2014 the number of state wiretaps where agents encountered encrypted communications decreased from 41 to 22. During the same period federal intercept agents faced the encryption issue only three times.
You may think fewer bad guys are using encryption. But studies have shown the opposite is true. Encryption has proliferated rapidly among criminals, terrorists, and others since 2013. After June of that year, when NSA contractor Ed Snowden began leaking documents on NSA surveillance programs, consumers of all kinds sought more communications privacy.
The more likely reason why encrypted-communication intercepts dropped in 2014 was due to operational necessity. Agents generally cannot afford the time, money, and effort of arranging intercepts on networks that carry encrypted communications if those communications cannot be overheard as intelligible voice conversations or viewed as readable text. In short, the spread of encryption may be preventing law enforcement from solving investigations through wiretaps. The 2014 Wiretap Report may therefore validate the lawful surveillance community’s complaint that it is “going dark.”
In fact, the Wiretap Report specifically mentions cases frustrated by encryption. It states that in two of the state-level encrypted-wiretap cases “officials were unable to decipher the plain text of the messages.” It adds that two of the three federal wiretaps of encrypted communications “could not be decrypted.” Finally, of five federal encrypted-wiretaps conducted prior to 2014 and reported in 2014, one could not be unscrambled.
If encryption is suppressing the number of wiretaps, industry should expect to receive fewer wiretap orders. On the other hand, the encryption problem may push law enforcement to contact industry more frequently with other needs, such as records production requests. We’ll know more when we see the next wiretap report.