© Jonathan McIntosh
If the government spies on you but brings no charges, you'll never know.

A federal judge estimates that his fellow federal judges issue a total of 30,000 secret electronic surveillance orders each year - and the number is probably growing. Though such orders have judicial oversight, few emerge from any sort of adversarial proceeding and many are never unsealed at all. Those innocent of any crime are unlikely to know they have ever been the target of an electronic search.

In a new paper, called "Gagged, Sealed & Delivered" (PDF), US Magistrate Judge Stephen Smith bashes this culture of continuing secrecy. (Magistrate judges are important members of the federal judiciary; they handle many of the more routine judicial matters, such as warrant applications and initial case management.) In his work as a judge, Smith has become dismayed by the huge number of electronic surveillance orders he sees and by the secrecy that accompanies them.

When police execute a traditional search warrant, they generally bring with them a copy of that warrant and show it to the homeowner or target of the search. That's not always the case, of course; sometimes warrants remain sealed while a case is in progress so as not to tip off a suspect.

But when surveillance enters the digital realm, secrecy becomes the norm. Digital "warrant-like" requests to access stored e-mail in an online account, or to wiretap an Internet connection, or to obtain "pen register" information, or to track a cell phone, are obtained from magistrate judges, many times in secret dockets that don't even appear in the federal government's official PACER document system. They come after one-sided ("ex parte") proceedings in which only the government is heard. And they are generally sealed, only to be unsealed once a criminal case is filed. If no such charges are ever brought, the search warrants and the affidavits defending them can remain buried in the murkiest bits of the federal court system; even knowing that they exist can be a challenge. ISPs, which are often targets of such orders, may also be forbidden from disclosing them.

Most of this surveillance is governed by the Electronic Communications Privacy Act (ECPA) of 1986 - a law so in need of reform that digital rights advocates and corporations alike have made it a key legislative priority. ECPA provides a host of tools to keep searches secret - so secret that they effectively avoid appellate review, making it difficult to know whether they are being properly issued.
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 - legible to the phone companies and Internet service providers who execute them, yet imperceptible to unsuspecting targets, the general public, and even other arms of government, most notably Congress and the appellate courts.
Judge Smith set out to find out how much ECPA surveillance exists in the US. Precise numbers were impossible to come by, even for one of the judges involved in issuing such orders, but Smith combined an earlier government survey with data from his own court's docket to produce what sounds like a reasonable estimate.

His estimate finds that 50,000 sealed orders were likely generated by federal judges in 2006, the year the judge analyzes. With 60 percent of these presumed to be ECPA-related surveillance orders, Judge Smith finds that magistrate judges issued more than 30,000 secret electronic surveillance orders that year. To put that in context, "this volume of ECPA cases is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark, and securities cases filed in federal court," he notes.

Smith isn't calling for the abolition of surveillance or anything too terribly radical. He understands why notice of a warrant may be delayed - but he wants the system made far more accountable.
Perfect transparency in criminal investigations is neither practical nor desirable, but ECPA's present system of gagging and sealing is surely overkill. If my diagnosis - that ECPA's regime of secrecy has choked off the oxygen of appellate review necessary for a healthy regulatory scheme - is correct, then the cure is relatively straightforward: open up the information arteries. Greater transparency would enable meaningful oversight not only by appellate courts but also by Congress and the general public.
One simple way to do this would be to open sealed warrants automatically after some period of time. At the moment, most warrant orders are sealed indefinitely, only being unsealed if a prosecutor or investigator in the matter bothers to go back to the judge and bring up the issue. In Smith's own "home court" in Houston, magistrate judges issued 3,886 sealed electronic surveillance orders between 1995 and 2007. In 2008, 99.8 percent of them still remained sealed.

That's especially bad news for those never charged with a crime, who will probably never learn that they were a target of government surveillance. And that number isn't trivial. Smith estimates, based on some limited data released by the Department of Justice, that it's "reasonable to infer that far more law-abiding citizens than criminals have been tracked in this fashion."

The situation, says Smith, is bad for democracy and for a transparent judiciary. Fixing it will be up to Congress, which has to decide where to draw the line between personal privacy and the needs of law enforcement. In Smith's view, any fix "will require the elimination of ECPA's current gag, seal, and blindfold."