(MintPress)–A judge has released a report detailing the secrecy behind warrants to law enforcement agencies for domestic spying, claiming 30,000 of such warrants are issued annually — all of which are considered top secret, eliminating any hope for tracing such evidence.
U.S. District Magistrate Judge Stephen W. Smith’s critical look at the secretive nature of domestic spying warrants highlights a number of concerns the Texas judge sees within the judicial system, one that leaves no trail of evidence for judges and citizens to indicate reasons for and targets of domestic spying warrants.
“It’s as though these orders were written in invisible ink — legible to the phone companies and electronic service providers who execute them, yet imperceptible to targeted individuals, the general public, and even other arms of government, including Congress and the appellate courts,” Smith wrote in his report.
Smith points to legislation that dates back to 1986, in what is known as the Electronic Communications Privacy Act (ECPA), which gave federal law enforcement the right to obtain surveillance orders in order to spy on ‘electronic lives’ of residents, a term that has adjusted as the technology environment has expanded. In essence, warrants issued can be used to access technology records of any resident approved through the warrant process. While Smith doesn’t question the need for surveillance in certain scenarios, he asserts the fact that records are not accessible is troubling, as there’s no way to monitor whether the system is being run effectively
“Unlike most court orders, electronic surveillance orders are permanently hidden from public view by various ECPA provisions, including sealed court files, gag orders, and delayed-notice,” Smith states.
Smith isn’t necessarily claiming there should be an open door policy for obtaining records related to law enforcement domestic spying warrants. However, he does say that, over time, such information should be available — not only for judges, but also for bodies of government to assess whether the warrants are effective and if they infringe on citizens’ protections against unlawful searches and seizures, guaranteed in the Fourth Amendment.
Smith states that such records should not perhaps be accessible right away, citing the dangers of premature disclosure. However, classifying the information as available for those within the public and judicial system is an option he argues for.
“The problem is that these surveillance orders remain secret long after the criminal investigation comes to an end,” he writes. “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.”
It also leaves federal law enforcement agencies with tremendous power that cannot even be checked by Congress.
“With Congress on the sidelines, appellate courts not engaged, and the public in the dark, the balance between surveillance and privacy has shifted dramatically toward law enforcement, almost by default,” Smith states.
Smith also notes in his piece that the number of warrants issued each year is growing at an incredible rate. With 30,000 warrants issued last year, Smith looks at what that would mean if all were legitimately used to combat criminal activity.
“Even if all ECPA targets were real criminals, the apparent size of ECPA’s secret docket is by itself enough to give pause,” he writes.
Smith’s experience in the judicial system plays into his belief that the ECPA cannot continue operating in the same fashion when it comes to law enforcement’s surveillance warrants, citing the fact that the number of warrants is only expected to increase annually.
“This regime of secrecy has many unhealthy consequences,” Smith wrote, pointing to the fact that, without documentation, Congress cannot assess the effectiveness of such warrants. He also highlights concerns that U.S. citizens have no avenue to gage the extent to which government intrudes in their lives.
Smith’s story will be published in the Harvard Law and Policy Review.