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.

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    PrometheeFeu (profile), 13 Oct 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.

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