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    New York Times: Public Is Left in the Dark When Courts Allow Electronic Surveillance

    The New York Times has an interview with Magistrate Judge Stephen W. Smith concerning government requests for electronic surveillance of cellphones and e-mail and a new article (original pdf; archive pdf) he has written in the Harvard Law & Policy Review:

    WASHINGTON — A big part of Magistrate Judge Stephen W. Smith’s job in Federal District Court in Houston is to consider law enforcement requests for cellphone and e-mail records. It requires him to apply old laws to the digital age and balance the government’s interest in solving crimes against the importance of protecting privacy.

    That is hard enough. What he has trouble understanding is why all this is kept from public view.

    “Courts do things in public,” Judge Smith said in an interview. “That’s the way we maintain our legitimacy. As citizens, we need to know how law enforcement is using this power.”

    But most court orders allowing surveillance are so secret, he wrote in a provocative new article, that they might as well be “written in invisible ink.” The article chronicles the rise of a secret docket on a scale that has no parallels in American history.

    Gathering the information was frustrating, Judge Smith said. “Even judges have difficulty finding out what other judges are doing,” he said.

    What we do know, as my colleague Eric Lichtblau reported a couple weeks ago, is that cellphone carriers responded to at least 1.3 million requests for subscriber information last year. […]

    In Judge Smith’s article, to be published in The Harvard Law and Policy Review, he describes a secret docket that dwarfs that of the Foreign Intelligence Surveillance Court, which considers warrant applications in national security investigations. Using data from 2006 and not a little extrapolation, Judge Smith estimated that there were about 30,000 sealed surveillance orders in federal courts that year, surpassing in a single year the entire output of the national security court since 1978.

    By way of comparison, he wrote, there were more surveillance orders in 2006 than the total of all antitrust, employment discrimination, environmental, copyright, patent, trademark and securities cases filed in federal court.

    Read the full article for more discussion of the secret docket of surveillance orders.

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