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Big Brother Has Become a Little Bigger, But You Won't Know It

Few people have ever hear of the Electronic Communications Privacy Act (ECPA) of 1986, but a recent New York Times article brings to the fore questions asked by a federal magistrate judge about how certain provisions of the law are implemented.

Sadly, even a sitting federal judge had difficulty with the opacity of the act, which permits law enforcement authorities to obtain information on individual phone and email records with little or no showing of a crime or their reasons for the request.

Judge Stephen Smith, who handles the requests on a daily basis, from his courtroom in Houston, Texas, has written a forthcoming article for publication in the Harvard Journal of Law and Policy, where he laments that the requests for "warrant-type applications" under the ECPA represents the most "secret court docket" in the United States.

A Very Large Number of Cases or Lack of Appellate Oversight

It is hard to say which aspect of this process is most disturbing. The number of cases is staggering, if Judge Smith's extrapolation is correct. He makes a comparison to the docket of the Foreign Intelligence Surveillance Act (FISA) court, the court that oversees requests for warrants of foreign intelligence matters.

Judge Smith estimates that, "the number of ECPA cases filed in a single year surpasses the entire output of the FISA court since its creation in 1978." He arrives at this based on an intricate working out of the information that is available on the sealed cases handled by magistrates' courts.

If his math is correct, the number of sealed EPCA orders issued in 2006 was 30,000. He also estimates that this number has only grown in the following years. He notes that Department of Justice has disclosed that "new pen register and trap/trace orders requested by four federal agencies (FBI, DEA, USMS, and ATF) more than doubled between 2006 and 2009."

Why This Is a Problem

When law enforcement decides to investigate an individual, if they want to search a person, their home or business, the police must present a warrant request to a judge. The request must state with particularly what they wish to search and provide that probable cause exists.

A judge reviews this request and determines if there is sufficient probable cause for granting the warrant.

Probable Cause

The U.S. Supreme Court has defined probable cause as the "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense."

For many EPCA "warrant-like applications," there is no requirement for the law enforcement to make any showing of probable cause.

The EPCA process circumvents this assessment by a judge, because if the government is not seeking the contents of a phone conversation or email, they are excused from the need to make the probable cause requirement.

Under the EPCA, your phone or email records may have been reviewed by police. You would never know it had occurred, and because the records are sealed (Judge Smith found in his district, 99.8 remained sealed), you could never learn of the search.

The courts maintain their authority because of their openness (most court procedures are open to the public and the process results in public documents) and by their reasoned, rational methods by which they arrive at their results. When the process loses transparency and rationality, what is left?

The Danger Stemming from Lack of Review

Another important point Judge Smith raises is the importance of review of decisions by appellate courts. Most trial cases in federal court take place in the magistrate and district courts. When judges make errors in those cases, relief is provided by appeal to the Court of Appeals and eventually the Supreme Court.

As he comments, "Every statute has its rough edges of ambiguity and gaps of uncertainty. These flaws are brought to light and repaired, day by day, case by case, through lower court rulings subject to review and correction by the courts of appeal."

Because of the secrecy, those flaws in the EPCA are never found or corrected. Troublingly, he goes on to point out that the longer this unrestrained surveillance continues, the more it become familiar and that breeds acceptance, which in turn erodes "our reasonable expectations of privacy-and hence our Fourth Amendment protections-continue to shrink."

He argues reforms to the EPCA are necessary because given the vast size and the hidden nature of the process, there currently is no way for ordinary citizens to know if any abuse is being committed behind the wall of secrecy that envelopes the EPCA.

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