Confronting the Electronic Surveillance 'Legal Void'

By Tricchinelli, Rob | News Media and the Law, Fall 2012 | Go to article overview
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Confronting the Electronic Surveillance 'Legal Void'


Tricchinelli, Rob, News Media and the Law


Secrecy of surveillance orders prevents effective coverage of government monitoring activity

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 die 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 litde 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 Smidi'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.

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