30,000 Secret Warrants Issued Within The United States Each Year

A federal magistrate, Judge Stephen Smith, writes in a new paper that the 2006 total of secret warrants approved to spy on people within the United States outstripped the entire output of the Foreign Intelligence Surveillance Court since it was created in 1979.

Smith says that federal judges approve about 30,000 warrants to spy on people in the USA every year and the number is most likely growing. And those innocent probably never know that they had been under investigation. According to Judge Smith, the number of such cases, “is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark and securities cases filed in federal court.”

The secret warrants are authorized by the Electronic Communications Privacy Act of 1986 and are not subject to public scrutiny. Instead, a three-judge panel reviews denials of applications for the warrants, but the court is not adversarial or open, and many orders are never unsealed.

Among Smith’s findings, which will be published in the Harvard Law & Policy Review:

These electronic surveillance orders … grant law enforcement access to the electronic lives of our citizens — who we call, where we go, when we text, what websites we visit, what emails we send. 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. 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 appellate courts.

This regime of secrecy has many unhealthy consequences: Congress lacks accurate empirical data to monitor the effectiveness of the existing statutory scheme and adapt it to new technologies; appellate courts are unable to give effective guidance to magistrate judges on how to interpret ECPA’s complex provisions in light of changing technology; and citizens are not informed about the extent of government intrusion into their electronic lives. With Congress on the sidelines, appellate courts not engaged, and the public in the dark, the balance between surveillance and privacy has shifted dramatically towards law enforcement, almost by default.

Judge Smith calls for “structural changes” in the law to “eliminate unnecessary secrecy,” including an end to “automatic gagging” and sealing orders. He wants a publicly available “warrant cover sheet” that features basic information about every electronic surveillance order.