Just Security: While the FISA court remains the only congressionally authorized secret court in our nation’s history, secret dockets are another matter. By Stephen Wm. Smith
'In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to our cell phone and Internet communications and records. This law authorized court orders compelling such access to be sealed indefinitely, “until further order of the court”; in practice, this has meant that these surveillance orders are permanently sealed. Moreover, these orders are routinely accompanied by gag orders forbidding the provider from telling customers that the government has read their emails or tracked their cell phones. (This has become a customer relations headache for providers like Microsoft, who sued last month to have ECPA’s gag provision declared a prior restraint of speech in violation of the First Amendment.)
'How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress. That is precisely the problem.
'These breathtaking numbers have no precedent in our legal history. Before the digital age, executed search warrants were routinely placed on the court docket available for public inspection. The presumption was that the public should be able to monitor the level of governmental intrusion into the “persons, houses, papers, and effects” of its citizens. Apparently, that presumption does not apply to government intrusion upon our digital lives.'