A federal judge estimates that his fellow federal judges issue a total of 30,000 secret electronic surveillance orders each year—and the number is probably growing. Though such orders have judicial oversight, few emerge from any sort of adversarial proceeding and many are never unsealed at all. Those innocent of any crime are unlikely to know they have ever been the target of an electronic search.
In a new paper, called “Gagged, Sealed & Delivered” (PDF), US Magistrate Judge Stephen Smith bashes this culture of continuing secrecy. (Magistrate judges are important members of the federal judiciary; they handle many of the more routine judicial matters, such as warrant applications and initial case management.) In his work as a judge, Smith has become dismayed by the huge number of electronic surveillance orders he sees and by the secrecy that accompanies them. […]
But when surveillance enters the digital realm, secrecy becomes the norm. Digital “warrant-like” requests to access stored e-mail in an online account, or to wiretap an Internet connection, or to obtain “pen register” information, or to track a cell phone, are obtained from magistrate judges, many times in secret dockets that don’t even appear in the federal government’s official PACER document system. They come after one-sided (“ex parte”) proceedings in which only the government is heard. And they are generally sealed, only to be unsealed once a criminal case is filed. If no such charges are ever brought, the search warrants and the affidavits defending them can remain buried in the murkiest bits of the federal court system; even knowing that they exist can be a challenge. ISPs, which are often targets of such orders, may also be forbidden from disclosing them.
Most of this surveillance is governed by the Electronic Communications Privacy Act (ECPA) of 1986–a law so in need of reform that digital rights advocates and corporations alike have made it a key legislative priority. ECPA provides a host of tools to keep searches secret—so secret that they effectively avoid appellate review, making it difficult to know whether they are being properly issued. […]
Smith isn’t calling for the abolition of surveillance or anything too terribly radical. He understands why notice of a warrant may be delayed—but he wants the system made far more accountable.