The Public Is Left in the Dark When Courts Allow Electronic Surveillance

WASHINGTON — A big part of Magistrate Judge Stephen W. Smith’s job in Federal District Court in Houston is to consider law enforcement requests for cellphone and e-mail records. It requires him to apply old laws to the digital age and balance the government’s interest in solving crimes against the importance of protecting privacy.

That is hard enough. What he has trouble understanding is why all this is kept from public view.

“Courts do things in public,” Judge Smith said in an interview. “That’s the way we maintain our legitimacy. As citizens, we need to know how law enforcement is using this power.”

But most court orders allowing surveillance are so secret, he wrote in a provocative new article, that they might as well be “written in invisible ink.” The article chronicles the rise of a secret docket on a scale that has no parallels in American history.

Gathering the information was frustrating, Judge Smith said. “Even judges have difficulty finding out what other judges are doing,” he said.

What we do know, as my colleague Eric Lichtblau reported a couple weeks ago, is that cellphone carriers responded to at least 1.3 million requests for subscriber information last year.

Under the Electronic Communications Privacy Act of 1986, officials do not need to establish probable cause to obtain various kinds of phone and e-mail records if they are not seeking the content of the communications. If all officials want to know is whether someone was near a cellphone tower on a given date, say, or whom that person called or e-mailed last month, the law says the government need only demonstrate to a judge that there are “reasonable grounds to believe” that the information sought is “relevant and material to an ongoing criminal investigation.”

Given that low bar, it is not surprising that such requests are routinely granted. What is surprising is how little we know about the orders granting them.

In Judge Smith’s article, to be published in The Harvard Law and Policy Review, he describes a secret docket that dwarfs that of the Foreign Intelligence Surveillance Court, which considers warrant applications in national security investigations. Using data from 2006 and not a little extrapolation, Judge Smith estimated that there were about 30,000 sealed surveillance orders in federal courts that year, surpassing in a single year the entire output of the national security court since 1978.

By way of comparison, he wrote, there were more surveillance orders in 2006 than the total of all antitrust, employment discrimination, environmental, copyright, patent, trademark and securities cases filed in federal court.

That is but a dated glimpse of a vast expansion of government monitoring of electronic communications with light judicial oversight and vanishingly little public information. Surveillance has since exploded with the rise of smartphones and other digital technologies. And many law enforcement surveillance requests do not require court orders, and those that do often come from judges in state courts.

Some temporary secrecy is surely warranted — to make sure that suspects are not tipped off, that evidence is not destroyed and that investigations are not disrupted.

“The problem is that these surveillance orders remain secret long after the criminal investigations come to an end,” Judge Smith wrote. Unless criminal charges are filed, he went on, “law-abiding citizens will never know that the government has accessed their e-mails, text messages, Twitter accounts or cellphone records.”

By long tradition and under the First and Sixth Amendments, what goes on in criminal proceedings is presumptively open to public scrutiny. The federal courts generally take pains to make this so.

But the practice is different under the 1986 law. “The problem is that temporary sealing orders almost always become permanent,” Judge Smith wrote. From 1995 to 2007, magistrate judges in Houston alone issued 3,886 orders concerning electronic surveillance. As of 2008, he found, 99.8 percent of them remained sealed.

Marc Rotenberg, the executive director of the Electronic Privacy Information Center, said Judge Smith is on to something.

“You can put in place substantive limitations on the collection and use of this data, which is always a good idea,” Mr. Rotenberg said. “But regardless of substantive limitations, you also need much more transparency.”

For his part, Judge Smith has proposed some modest fixes. At some point, people whose records have been inspected should be told. At some point, secret court orders should be unsealed. Comprehensive data should be collected, he wrote, to “allow the press and public to better understand the extent of government intrusion into our digital lives.”

He was in a way echoing an observation by Chief Justice Warren E. Burger in 1980, before the dawn of the Internet era. “People in an open society do not demand infallibility from their institutions,” he wrote, “but it is difficult for them to accept what they are prohibited from observing.”