How Certain Judges Let The Feds Hide Questionable Spying Activity

from the unfortunate dept

With the recent unveilling of sealed orders by the feds collecting info from various service providers on the activities of various Wikileaks volunteers, you might wonder how such things get sealed... and how often that happens. It appears quite frequently, but the details (of course) are secret. Julia Angwin at the Wall Street Journal profiles one magistrate judge who has been pushing for others to limit their use of seals, but it sounds like not many are following.
“We diminish our legitimacy when we do things under a blanket of secrecy,” Judge Smith said in an interview. “The only way people can get confidence in what we’re doing is if they can get access to what we are doing and know why we are doing it.”

Judge Smith analyzed the 4,234 electronic surveillance orders issued in his Houston courthouse between 1995 and 2007 and found that 91.8% of them remain sealed today.

Judge Smith says he now sets time limits for the seals on orders that he signs. If prosecutors want to renew the seal, they must request an extension. “It’s more work,” Judge Smith says, “but I think it’s necessary work.”

He said he is worried that “people who aren’t indicted – regular law abiding citizens like you or me,” will never know if their records were obtained in an investigation, he says, “because these sealing orders live on indefinitely.”
This is a huge problem for our supposedly "transparent" government. When it can effectively conduct investigations and never have to admit to them or get any adversarial review over whether or not the investigation itself was legal, you have a system prone to massive abuse. There are certainly times and cases where such seals could make sense. But the idea that so many cases are effectively permanently sealed, it gives the government the ability to spy on people with impunity. You just need to find a magistrate judge willing to accept the government's version of what's happening... and that seems to happen frequently enough.

The full article has even more disturbing details like the fact that a recent survey found that 39% of sealed cases are never even put into the court's system for tracking cases, which would at least provide some info to the public to help analyze how often this kind of thing happens. This kind of secrecy is not how a government is supposed to function. If such investigations need to happen under seal they should always include some sort of expiration date on the seal. Otherwise, the feds know that as long as they can convince a judge (without the other side there to argue), they're effectively home free, and no one will scrutinize the investigations.


Reader Comments (rss)

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  1.  
    identicon
    Anonymous Coward, Oct 12th, 2011 @ 8:41pm

    We have ceased to be a nation of laws and we are now a nation of bureaucrats and lawyers.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Oct 12th, 2011 @ 8:42pm

    uh oh, mike post, incoming closet fetishists dismantling everything he says

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Oct 12th, 2011 @ 8:56pm

    Re:

    Do you mean dismantling the part where he's a closet pirate or the part where he's a closet satanist?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Oct 12th, 2011 @ 9:00pm

    Re: Re:

    wait... mike is a satanist too now? when did this happen

     

    reply to this | link to this | view in thread ]

  5.  
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    Anonymous Coward, Oct 12th, 2011 @ 9:01pm

    Re: Re:

    He's a closet broadbrusher too!

     

    reply to this | link to this | view in thread ]

  6.  
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    sehlat (profile), Oct 12th, 2011 @ 9:02pm

    Trust *AND* Verify

    If any person or organization is to be trusted, there must be feedback. That includes the ability to observe both what is done and its effects. Anything that is done in secret cannot, therefore, be trusted, no matter what we are told is being done, simply because we are denied information by which we can judge.

    John 3:20 put it best: (KJV) For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved.

     

    reply to this | link to this | view in thread ]

  7.  
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    MrWilson, Oct 12th, 2011 @ 9:09pm

    Re: Trust *AND* Verify

    Not just feedback though. There must be in-built repercussions for violations of the public trust. And not just token punishments. Those we trust must fear violating the public trust. How many judges would be willing to cover up misdeeds with their seals if they knew we'd oust them and throw them in jail? Allowing corruption to proliferate sounds like treason to me.

     

    reply to this | link to this | view in thread ]

  8.  
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    The eejit (profile), Oct 12th, 2011 @ 11:21pm

    Re: Re:

    Do what thou wilt is the whole of YOUR law.

     

    reply to this | link to this | view in thread ]

  9.  
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    Gumnos (profile), Oct 13th, 2011 @ 4:39am

    I know I've been reading Techdirt too long when...

    my first thought on reading this article was "Hmm, there's a business opportunity here for somebody to set up an auto-request-extensions business because this judge isn't meeting the needs of his government customers..."

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Jose_X, Oct 13th, 2011 @ 5:08am

    It's the People's nation, darn it!

    I would like to see a US Pirate party adopt a popular platform and include strong words about transparency.. eg, that judge's example is something I would like to see become law.

     

    reply to this | link to this | view in thread ]

  11.  
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    Thomas (profile), Oct 13th, 2011 @ 6:07am

    The feds..

    can always find a judge who will do their illegal bidding. Judges know there are benefits to doing whatever the spooks tell them to do; you might find a nice envelope with cash in it.

    There are way enough dishonest and shady judges in the country at both state and federal level to allow the government to get away with pretty much anything. This extends all the way to the SCOTUS.

     

    reply to this | link to this | view in thread ]

  12.  
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    Neppe (profile), Oct 13th, 2011 @ 8:09am

    Re: Re: Re:

    Quoting A.C. to an AC.
    I found that to be oddly hilarious :)
    Thanks

     

    reply to this | link to this | view in thread ]

  13.  
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    Vic (profile), Oct 13th, 2011 @ 8:41am

    Non-peeks and hidden peeks

    Many peeks are really only for information purposes. Almost like rattling the door knob to check that it's locked. They don't 'exist', while building a picture or a map of activity. If something looks tasty then they add a hidden request, CYA in case the legal beagles need it later.

     

    reply to this | link to this | view in thread ]

  14.  
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    PrometheeFeu (profile), Oct 13th, 2011 @ 10:26am

    I think a good approach would be to limit the number of sealed orders. So for instance we could say that no more than 10% of surveillance orders may be sealed. (or more realistically, sealed for longer than 3 months) Keep a count of sealed and unsealed orders and if at any time the number creeps above 10%, judges are no longer allowed to issue sealed orders until the number has fallen back under 10%. Would it make sense as a policy? Not really. But it would make sense as an incentive. It would force agencies to hoard their number of allowable sealed orders using them only when absolutely necessary.

     

    reply to this | link to this | view in thread ]

  15.  
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    John Fenderson (profile), Oct 13th, 2011 @ 2:05pm

    Re: Non-peeks and hidden peeks

    Many peeks are really only for information purposes.


    And those are unconstitutional and just a big of a problem as malicious prosecution. No wonder they don't want us to know the extent of their lawbreaking.

     

    reply to this | link to this | view in thread ]

  16.  
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    The Devil's Coachman (profile), Oct 13th, 2011 @ 5:25pm

    Any sealed order can be broken.

    If I want to find out what is in a sealed order, believe me, it can be done. It takes some money, and maybe a connection or two, but it is entirely, easily doable. Someone had to type it. Someone else had to file it. Somebody had to read it. Lotta people in that chain, so it's just a matter of finding the right one and the right buttons to push. You think social engineering is confined to the internet? Then you're hopelessly deluded. The key thing is - don't let anyone else know that you know. Or they have to go away.

     

    reply to this | link to this | view in thread ]


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