A remarkable series of events is taking place in the Federal District Court in Houston. Stephen Smith, one of the court’s magistrate judges, began to wonder why law enforcement requests for mobile phone and email records were kept secret. So secret, in fact, that the court orders allowing the surveillance might as well be “written in invisible ink,” Smith writes in a Harvard Law & Policy Review article (.pdf; 147KB).
Last year, mobile phone carriers responded to 1.3 million surveillance requests from law enforcement agencies, as Eric Lichtblau reported for the New York Times earlier this month. Lichtblau based his reporting on the carriers’ reports to a request from US Representative Edward Markey (D-Massachusetts). The reports indicate that telecommunications carriers regularly rejected surveillance requests from law enforcement agencies.
Licthblau notes that AT&T responds to some 230 “emergency” surveillance requests every day from every facet of law enforcement from the local to the federal levels. These “emergency” surveillance requests require neither a subpoena, court order, or warrant of any kind. The Electronic Communications Privacy Act (ECPA) does not require law enforcement to establish probable cause so long as the actual content of the communication is not being sought. Rather, only a reasonable expectation that the information is relevant to an ongoing criminal investigation is required. The number of emergency surveillance requests has tripled in the last five years.
In his article, Smith estimates there were about 30,000 secret surveillance requests in federal courts from law enforcement agencies in 2006, not counting the other secret surveillance requests involving national security that go directly to the Foreign Intelligence Surveillance Court (FISC) under the Foreign Intelligence Surveillance Act (FISA). “… In fact, 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,” writes Smith.
Smith doesn’t see a problem with temporary secrecy surrounding law enforcement activities with regard to investigation and surveillance. “The problem,” Smith writes, “is that these surveillance orders remain secret long after the criminal investigations come to an end.” Even worse, “This means that, unless the investigation results in criminal charges, targets who are law-abiding citizens will never learn that the government has accessed their emails, text messages, twitter accounts, or cell phone records,” concludes Smith.
Smith notes that in response to a Freedom of Information Act (FOIA) request and lawsuit from the American Civil Liberties Union (ACLU) (.pdf; 180KB) requesting information for any legal case in which an individual was prosecuted using information discovered through one of these warrantless emergency surveillance requests, the US Department of Justice response was a list of only 255 prosecutions.
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Piercing the surveillance secrecy veil was originally published by ARTS & FARCES internet on Tuesday, 31 July 2012 at 1:25 PM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)