Spying with subpoenas, search warrants – or nothing at all

Government surveillance of Internet users’ data has increased significantly in recent years, due in large part to the law’s inability to keep up with modern technology and a low level of judicial oversight of the monitoring activities. Statistics provided by the U.S. Department of Justice, for example, reveal that the number of court orders authorizing certain electronic surveillance techniques rose 60 percent from 2009 to 2011. And in response to a congressional inquiry to cellphone carriers about their practices for sharing customers’ mobile phone information with law enforcement agencies, the companies disclosed that they received more than a million requests for such records in 2011.

In the past, it was mainly news media websites that create forums and invite comments that faced the challenge of supporting their readers’ free speech and privacy rights in the face of law enforcement investigations. But in today’s increasingly digital society, many online service providers likewise are trying to figure out what role they want to play in protecting their users’ constitutional rights. Twitter’s recent decision to comply with a court order to turn over user information to New York prosecutors or be charged with contempt, while still challenging the order in a state appellate court, demonstrates the difficulties the companies encounter in developing their policies and the industry’s lack of uniform guidelines addressing the issue.

While Twitter and other Internet companies have tried to increase transparency by publicly revealing the number of government requests for user information they receive, the true nature and extent of the surveillance is nearly impossible to ascertain. Under the law authorizing such electronic surveillance, most of the requests, orders and even docket sheets are secret and remain so indefinitely, even from the targets of the investigations. In addition, courts routinely issue gag orders prohibiting the service providers from disclosing to anyone the existence of certain types of approved surveillance or the underlying investigation.

This “regime of secrecy,” as a federal judge who regularly hears government requests for electronic surveillance recently described the monitoring scheme, severely impedes journalists’ ability to effectively cover law enforcement investigations and courts’ exercise of their authority to issue the orders. Perhaps more importantly, though, journalists are unable to accurately report on a matter of significant interest and concern to the public: the increasingly wide scope of the government’s electronic surveillance activity.