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

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.” see:Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket by Stephen Wm. Smith
What is the most secret court docket in America? Many would point to the Foreign Intelligence Surveillance Act (FISA) court, set up during the Carter Administration to oversee requests for surveillance warrants against suspected foreign intelligence agents. Due to the sensitive nature of its business, FISA proceedings and records are closed to public view. Since 1979, that court has processed over 28,000 warrant applications and renewals, a rate of nearly one thousand secret cases a year.But the FISA court is not number one in the secrecy parade, not by a long shot. According to a recent study by the Federal Judicial Center, there is another federal docket that handles tens of thousands of secret cases every year. That docket is presided over by federal magistrate judges in United States district courts around the country. Most of its sealed cases are classified as “warrant-type applications,” a category that includes not only routine search warrants but also various forms of electronic surveillance, such as the monitoring of electronic communications and data transmitted by the cell phones, personal computers, and other digital devices that now dominate our everyday lives. This type of electronic surveillance is regulated principally by the Electronic Communications Privacy Act of 1986 (ECPA). Although the ECPA has often been amended, most changes have been technical tweaks to the existing framework.

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