Google and Verizon report explosion in government data requests, heavy reliance on metadata spying

Google and Verizon have released relatively detailed transparency reports, showing for the first time how many subpoenas, court orders, search warrants, and wiretap orders they received during the first six months of 2013 and the year, respectively. The results confirm what we already knew: When law enforcement officials can obtain our private records without warrants, they use that power to the max.

The charts below show how many of each type of request Verizon and Google received during the year 2013 (for Verizon) and the first six months of 2013 (for Google). They show that law enforcement officials submit vastly more subpoenas than search warrants. That's no surprise, given that subpoenas require zero showing of probable cause, and typically do not require any sort of judicial approval or even administrative oversight. As we've long suspected, when we give the police and prosecutors the power to conduct fishing expeditions completely in the dark, they go big.

Google reports that it received three times the number of government surveillance orders in the first six months of 2013 than it did in the last six months of 2009. Like with Verizon, the vast majority of those requests were subpoenas, which do not require a showing of probable cause or a judge's approval. A frequently deployed tool in the prosecutor's arsenal, the administrative subpoena is just a piece of paper that she fills out and sends to a company like Google or Verizon, demanding user information. In Massachusetts, we found that most prosecutors do not even keep internal records of how many subpoenas their offices file each year.

You might be thinking: What's the big deal? Law enforcement can't read the content of my communications without a warrant, so why make such a big deal out of these suspicionless subpoenas? In fact, metadata reveals the content of our lives in a way that content usually cannot. And unlike you and I when we are yapping on the phone, sending emails, or tapping out text messages, metadata never lies. With call detail records, location data, and IP addresses, what investigators see on the page is reliable, detailed, and potentially incriminating information—no evidence or warrant required.

That's why it's chilling to see that information Verizon provided supports the conclusion that warrantless metadata surveillance is the meat and potatoes of law enforcement investigations in the United States today. When you hear that metadata isn't such a big deal because it doesn't disclose the contents of our communications, remember that 95% of the time the government isn't trying to listen to what you're saying on the phone or over email. Metadata often gives investigators all the information they need, and in the vast majority of circumstances they don't have to do more than fill out a piece of paper in order to get it. In its report to the public, Verizon says that the number of government demands for content "accounted for only about five percent of the total number of demands we received in 2013."

Lots of those metadata orders were for location information, the demands for which Verizon says "are increasing each year." Unfortunately, as you can see from the chart below, the vast majority of demands for our location information do not require that prosecutors submit probable cause to a judge. More often than not, police and prosecutors obtain (d) orders to get our location data from Verizon. These orders simply require that prosecutors demonstrate that our location information is somehow "relevant and material" to an investigation—not that the information returned will likely reveal evidence of a crime, like with probable cause search warrants. These (d) orders, while slightly more burdensome to the government than subpoenas, do not sufficiently protect innocent people from government fishing expeditions. A US federal magistrate has concluded that, as a result of this low standard and the secrecy surrounding the (d) order regime, it is "reasonable to infer that far more law-abiding citizens than criminals have been tracked."

As these reports demonstrate, we need to update both state and federal laws in order to ensure that law enforcement cannot track us for no good reason. Congress should pass the GPS Act, requiring that police get a warrant in order to use high-tech tools to follow us around everywhere we go, at a fraction of the cost of physical surveillance. State legislatures should follow in the footsteps of Maine and Montana, which in 2013 enacted warrant requirements for location tracking. Here in Massachusetts, the Electronic Privacy Act, currently before the Joint Judiciary Committee, would do that and more.

The NSA is not the only government agency that accesses our private information without warrants. The law is woefully out of date, and as these transparency reports show, the government's hunger for our private information only grows each year. We need to update our privacy laws at every level to reflect the ways we communicate today. In the vast majority of circumstances, prosecutors who want to dig around in our personal records should be required to get a warrant. Unfortunately, today they can usually do so with a piece of paper no different from a doctor's prescription pad.

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