Judge advocates transparency for electronic surveillance orders

In a recent paper entitled “Gagged, Sealed & Delivered,” U.S. Magistrate Judge Stephen Smith reveals the gross number of electronic surveillance orders and his concerns over the transparency and furiousness of the policy. In the paper’s abstract he writes: “Federal magistrate judges preside over the most secret docket in America. Exact figures are not known, but available data indicates that these judges issued over 30,000 electronic surveillance orders in 2006, more than the entire output of the FISA court over its entire history. These electronic surveillance orders, authorized by the Electronic Communications Privacy Act of 1986 (ECPA), grant law enforcement access to the electronic lives of our citizens — who we call, where we go, when we text, what websites we visit, what emails we send. Unlike most court orders, electronic surveillance orders are permanently hidden from public view by various ECPA provisions, including sealed court files, gag orders, and delayed-notice. It’s as though these orders were written in invisible ink — legible to the phone companies and electronic service providers who execute them, yet imperceptible to targeted individuals, the general public, and even other arms of government, including Congress and appellate courts. This regime of secrecy has many unhealthy consequences...more