Two Out of Every Three US Demands to Google Come Without A Warrant

This morning, Google released their semi-annual transparency report, and once again, it revealed a troubling trend: Internet surveillance around the world continues to rise, with the United States leading the way in demands for user data.

Google received over 21,000 requests for data on over 33,000 users in the last six months from governments around the world, a 70% increase since Google started releasing numbers in 2010. The United States accounted for almost 40% the total requests (8,438) and the number of users (14,791). The total numbers in the US for 2012 amounted to a 33% increase from 2011. And while Google only complied with two-thirds of the total requests globally, they complied with 88% of the requests in the United States.

Admirably, Google expanded their transparency report this time around, providing more detailed information about what kind of requests they get from the US government—specifically the type of requests they get under the main email privacy law in the US, the Electronic Communications Privacy Act (ECPA).

EFF has long criticized ECPA for not providing email with the same warrant protection as the Fourth Amendment gives to physical letters and phone calls. The Justice Department believes that it doesn’t need a warrant for emails over 180 days. Google’s lawyers, to their credit, have criticized the law as well, saying just this week, "our view is that [ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant."

The most troubling aspect of the transparency report shows a vast majority—about two-thirds—of US government requests for user data were by subpoena, which has a much lower threshold than warrants and do not even require a judge’s approval. Only 1896 of the requests also came with a probable cause warrant, and 5784 of them came with no preliminary oversight from a judge at all.

And it’s probable that the actual number of requests from Google is vastly higher, as the number likely does not include any intelligence surveillance requests. National Security Letters, the controversial tool used by the FBI to gain access to personal information without any court authorization whatsoever (and currently being challenged in a federal district court by EFF), are almost certainly not included. Normally, NSLs come with gag orders attached to them so the organizations that receive them cannot even admit they exist. The FBI has issued hundreds of thousands of NSLs in the past decade.

It's likely Patriot Act orders under the secretive Section 215 (EFF is currently suing the goverment over this section under the Freedom of Information Act), and classified FISA court orders, which may allow for untargeted warrantless wiretapping, aren't included either.

Despite this evidence of the increasing amount of digital data obtained by law enforcement, the government wants even more power. The FBI claims that digital communications are “going dark,” and reports indicate the Obama administration with soon ask Congress for a new Internet surveillance law in the form of an expansion of CALEA, which forces telephone companies to install backdoors into their digital systems. If the FBI has their way, the new law could force Internet companies to do the same, setting up not only a privacy nightmare for users, but inhibit Internet security and innovation as well. It will be a major battle in the coming months and EFF plans to fight it.

Unfortunately, government surveillance of the Internet is not only a problem in the United States. Google’s transparency report paints a bleak picture of increasing amount of electronic surveillance across the world. Global electronic surveillance has increased 70% since Google started reporting its numbers, and the region-by-region breakdown is even starker:

The number of inquiries from Europe has increased by almost 100%.

The number of inquiries from Asia-Pacific region has increased by more than 200% since we launched.

The number of inquiries from North America has increased by more than 100% since we launched.

The only good news is from Latin America where the numbers have actually decreased by 60% since 2009. However, the trend is clear: governments now, more than ever, issuing surveillance demands to Internet companies. And it's important our privacy laws are updated to protect users' rights.