Somebody cue the Rockwell. US Magistrate Judge Stephen Smith has released a new paper that estimates federal judges issue 30,000 electronic surveillance orders a year. And, they’re essentially secret, because if no action comes about from them, you’ll never know.
Digital “warrant-like” requests to access stored e-mail in on online account, or to wiretap an Internet connection, or to obtain “pen register” information, or to track a cell phone, are obtained from magistrate judges, many times in secret dockets that don’t even appear in the federal government’s official PACER document system. They come after one-sided (“ex parte”) proceedings in which only the government is heard. And they are generally sealed, only to be unsealed once a criminal case is filed. If no such charges are ever brought, the search warrants and the affidavits defend them can remain buried in the murkiest bits of the federal court system; even knowing that they exist can be a challenge. ISPs, which are often targets of such orders, may also be forbidden from disclosing them.
Smith isn’t arguing that we stop all this surveillance, rather make it more transparent.
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