Confronting the electronic surveillance ‘legal void’

Stephen W. Smith, a federal magistrate judge in Houston, regularly hears government requests for electronic surveillance, including access to cellular telephone and email records.

This work done by Smith and his fellow magistrate judges in the U.S. District Court for the Southern District of Texas, however, is but a small piece of the overall electronic surveillance scheme undertaken by U.S. law enforcement agencies, both federal and state.

A recent article by Smith published in a prestigious legal journal, along with related disclosures by government officials and cellphone carriers, have thrown light on a burgeoning expansion of electronic surveillance used in law enforcement investigations — a significant revelation given that under the federal law authorizing the surveillance, many of the requests become secret and stay that way indefinitely.

Although little aggregate data exist, what is available shows that the government’s use of electronic surveillance during investigations is rising dramatically, in both secrecy and frequency, a trend that threatens journalists’ ability to effectively cover courts and law enforcement investigations and accurately report on the extent of government intrusion into individuals’ digital lives.

A law that threatens transparency

The law behind it all is the Electronic Communications Privacy Act (ECPA), enacted in 1986. The ECPA predates common use of search engines, smartphones and countless other instant communications technologies, but governments still use its aging structural framework to conduct surveillance.

Perhaps more troubling, though, is an often overlooked aspect of the law: its “regime of secrecy” that trumps even that of the Foreign Intelligence Surveillance Act court, which hears requests for surveillance warrants against people suspected of being foreign intelligence operatives, according to Smith’s article.

Under the ECPA, the authorizing judge is required to seal the order granting a government request to wiretap electronic communications, and the order remains in effect “until further order of the court.” The law requires notifying the targets of the investigation within 90 days, but this requirement can be, and routinely is, postponed. In addition, courts routinely issue gag orders prohibiting service providers and their employees from disclosing to anyone the existence of certain types of approved surveillance or the underlying investigation, leaving the public and news media in the dark about the true breadth of the law and its application in individual cases.

“The careful balance of privacy and security set by Congress is inevitably washed away by a torrent of secret orders, unrestrained by the usual adversarial and appellate processes,” Smith said in his article, which appeared this past summer in Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy published twice annually by Harvard Law School.

“Through a potent mix of indefinite sealing, nondisclosure (i.e., gagging), and delayed-notice provisions, ECPA surveillance orders all but vanish into a legal void. It is as if they were written in invisible ink.”

One solution to the disturbing trend, Smith said, is recognition of and adherence to the well-established law governing the right of public access to the nation’s court system — jurisprudence that “condemns” secrecy and promotes openness.

The U.S. Supreme Court has spoken repeatedly on the importance of transparency in judicial proceedings, Smith said, noting the dictate from the Court’s 1980 landmark opinion Richmond Newspapers, Inc. v. Virginia that “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

Application of the law

Smith’s article relied on a 2009 study of 2006 data and, with extrapolation and analysis, concluded that federal courts issued more than 30,000 secret electronic surveillance orders in 2006.

Two surveillance methods authorized under the ECPA are “pen registers” and “trap and trace devices.” These terms initially defined items physically attached to phone lines: A pen register would log outgoing numbers dialed, and a trap and trace device would log the numbers of incoming calls. Today, no special equipment is required to record this information, which can be intercepted purely electronically by communications companies.

The federal government’s use of these two surveillance techniques has increased sharply and suddenly. The number of orders authorizing the two techniques rose 60 percent from 2009 to 2011, according to data the U.S. Department of Justice provided the ACLU in response to a federal Freedom of Information Act request.

“Every year, the number goes up,” said Chris Soghoian, an ACLU analyst. “The increase in pen registers . . . reflects the overall use of surveillance tools by government agencies.”

An individual surveillance order can span different contacts across a particular number. Because of this, more people were affected by these orders in 2010 and 2011 than in the previous 10 years combined. In addition, the government now also uses this authority to intercept the “to” and “from” addresses of email messages, records about instant message conversations, non-content data associated with social networking identities and at least some information about the websites users visit, according to the ACLU’s summary of the data.

The Justice Department’s data reveal only a partial picture, Soghoian said, because they do not reflect the numbers from state and local law enforcement or other federal agencies.

More broadly, cellphone carriers received at least 1.3 million requests for records from law enforcement agencies in 2011. Individual carriers disclosed different information in response to letters from U.S. Rep. Edward J. Markey (D-Mass.) inquiring about “their policies and practices for sharing their customers’ mobile phone information with law enforcement agencies.”

By contrast, a government report showed that warrants for wiretapping fell nearly 15 percent in 2011, to 2,732.

Unfortunately for journalists and others, these piecemeal, and often conflicting, accounts of the frequency of surveillance orders often provide the only information about the issue because what are supposed to be temporary sealing orders designed to protect the integrity of an ongoing criminal investigation almost always become permanent, Smith said.

“More often than not, judges set no expiration dates on these orders, but merely direct that they be sealed and not disclosed ‘until further order of the court.’ The reality is that magistrate judges almost never have occasion to revisit these cases, so the ‘further order’ lifting the seal rarely arrives,” he said.

Smith cites his own judicial division as evidence of this claim. From 1995 to 2007, federal magistrate judges in Houston issued 3,886 electronic surveillance orders that were sealed “until further order of the court,” he said. As of 2008, 99.8 percent of those orders remained sealed, “long after the underlying criminal investigation was closed. Based on anecdotal conversations with other magistrate judges around the country, I have no reason to believe the Houston experience is unique,” he added.

To avoid this problem, Smith said he now sets a time limit of 180 days for sealing and gag orders, with extensions granted if the investigation is still ongoing, or for other good cause.

The judge also called on his fellow members of the judiciary to aggregate and track their own procedures for dealing with electronic surveillance cases. By lifting the “blindfold,” the judiciary can help lawmakers and the public “accurately assess the breadth and depth of current electronic surveillance activity” and act appropriately, he said.

Efforts to reform the law

Although the secrecy aspect of electronic surveillance orders has yet to be challenged in court, their increased frequency has prompted legal clashes over the appropriate use and classification of data under the ECPA. There also have been moderate yet slow-moving efforts to reform the statutory language of the ECPA to better reflect modern technology.

“Email didn’t exist when these authorities were created,” Soghoian said. “Laws lag behind the technology.”

A few congressional bills attempted to tackle the issue. One, sponsored by Rep. Jason Chaffetz (R-Utah), would have required a warrant for the government to obtain location information. Another, sponsored by Sen. Patrick J. Leahy (D-Vt.), who originally sponsored the ECPA in 1986, would have added the same warrant requirement while also heightening protections for email messages and reducing the time periods after which law enforcement must notify targets about searches. Neither bill made it out of committee.

For more meaningful change, Smith argued that the law must be changed to mandate notice to targets of electronic surveillance, as is the case with “ordinary search warrants,” to allow affected users a meaningful opportunity to challenge orders issued in violation of the ECPA’s rules and procedures.

He also suggested that Congress amend the ECPA to eliminate routine gag orders and prohibit automatic sealing for electronic surveillance applications, orders and docket sheets.

“The public has no way to evaluate, much less have confidence in, sealed court orders,” the judge said. “From the standpoint of the ordinary citizen, electronic surveillance is among the most intrusive governmental activities a court can authorize, yet it is also the most likely to be hidden from public view.”