Abstract

http://ssrn.com/abstract=2071399
 


 



Gagged, Sealed & Delivered: Reforming ECPA's Secret Docket


Stephen W. Smith


Texas Southern University - Thurgood Marshall School of Law

May 21, 2012

Harvard Law & Policy Review Vol. 6, 2012 Forthcoming

Abstract:     
Federal magistrate judges preside over the most secret docket in America. Exact figures are not known, but available data indicates that these judges issued over 30,000 electronic surveillance orders in 2006, more than the entire output of the FISA court over its entire history. These electronic surveillance orders, authorized by the Electronic Communications Privacy Act of 1986 (ECPA), 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. While it is certainly time to update the substantive provisions of ECPA, it is equally important to make structural changes in the law to eliminate unnecessary secrecy. Such reforms should include the elimination of automatic gagging and sealing orders, as well as the adoption of a publicly available warrant cover sheet to capture basic information about every electronic surveillance order.

Number of Pages in PDF File: 26

Keywords: electronic surveillance, privacy, ECPA reform, sealed cases, gag orders, secret dockets, warrant cover sheet, magistrate judges

Accepted Paper Series





Download This Paper

Date posted: June 1, 2012 ; Last revised: June 5, 2012

Suggested Citation

Smith, Stephen W., Gagged, Sealed & Delivered: Reforming ECPA's Secret Docket (May 21, 2012). Harvard Law & Policy Review Vol. 6, 2012 Forthcoming. Available at SSRN: http://ssrn.com/abstract=2071399

Contact Information

Stephen W. Smith (Contact Author)
Texas Southern University - Thurgood Marshall School of Law ( email )
3100 Cleburne Street
Houston, TX 77004
United States
Feedback to SSRN


Paper statistics
Abstract Views: 7,918
Downloads: 1,074
Download Rank: 10,463

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.390 seconds