Huge Scope of Electronic Surveillance Hidden In Sealed Court Files

In the Age of Edward Snowden, few people expect anything but widespread surveillance. Important fact, though: the culprits aren't just the NSA. Often it's just plain old regular federal law enforcement behind the veil. And as a story at the Wall Street Journal yesterday highlighted, courts only lightly get to supervise.

The WSJ's story leads with the tale of a magistrate judge in Texas named Brian Owsley who, disturbed by the number of electronic surveillance orders he approved while in office, sought to unseal a hundred of them so that they could be publicly reviewed. He had concerns about the basis on which some of these orders were sought; he thought some requests were improper. But a more senior judge blocked Owsley's efforts to unseal. Apparently it's important to someone that such orders remain secret long after the relevant investigation has closed. That someone is, broadly, the Justice Department:

The government has said that even after a suspect is apprehended or an investigation dropped, unsealing can reveal informants and cooperators and the technical tools used. A Justice Department spokesman said sealing also protects the privacy of people under surveillance but ultimately never charged with a crime, and that the department turns over any orders that might be "exculpatory or otherwise useful" to defendants.

These sealed orders are for various kinds of surveillance tools, some of which are as wide as an information dump from a particular cell towers.

One tool the WSJ drills down in particular is what's known as a "pen register," which records the numbers called from a given telephone line, or the "to" addresses on an email. (A parallel tool, "trap and trace" device, gets the incoming numbers/emails.) A pen register doesn't give the authorities the content of the messages. But as you can imagine, these lists still contain a lot of valuable information about the known associates of the target of an investigation.

The appeal of a pen register is that it's easier to get than a wiretap, basically. The Electronic Communications Privacy Act, the federal surveillance law that dates back to 1986, allows law enforcement to get them by court order when "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." For those of you who neither went to law school nor watch a lot of Law & Order, "relevant" is a considerably lower standard than "probable cause" required to obtain a warrant under the Fourth Amendment. A lot of legal scholars have never liked this, and want higher protection, but the standards of 1986 have so far held steady.

Pen register use becomes more popular with law enforcement with each passing moment:

Federal courts allowed one surveillance tool called a "pen register"—which records dialed phone numbers and Internet addresses—18,760 times in 2012, according to data released by the Justice Department after a Journal request. That is more than triple the number in 2003, when there were 5,922 such orders.

An additional data point: the Justice Department told the Yale Information Society Project that it had gotten 12,444 pen register orders in 2009. Which means, if you do the math (I'll let you get out your own calculator), not only are more of these requested now, but the rate at which they're being issued is accelerating.

Looking at the orders, like the crusading magistrate judge wants the public to be able to do, would allow for much greater transparency. We could compile statistics on the kinds of cases in which law enforcement is requesting them; we could evaluate whether or not they are being used effectively. We could make sure that there are good reasons for letting law enforcement have these tools at their disposal, and good reason for them to keep their efforts quiet. In short, we would have transparency, informed governance, and the rule of law applied in this new and highly sensitive frontier of investigative work in this great nation.

But then: that would be another country, and besides the wench is dead.

[Image via Shutterstock.]