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Senator Calls on Courts to Increase Transparency of Surveillance Orders

DEEPLINKS BLOG
December 15, 2017
FOIA Flashlight

Federal courts must end the excessive secrecy surrounding law enforcement surveillance orders, a U.S. Senator urged in a letter on Friday. This secrecy block’s the public’s ability to fully understand how police conduct this surveillance, the lawmaker wrote.

The letter, sent by Sen. Ron Wyden (D-Or), asks federal courts to enact several important reforms, including establishing uniform procedures for publicizing basic information about when and how often law enforcement seeks information about our communications and other data held by services such as cell phone companies, Internet service providers, and online platforms.

The information law enforcement can obtain with these orders can often provide considerable insight into people’s private lives, including with whom they communicate, whether they have particular medical conditions, or specific locations they have traveled to over a period of time. Although courts generally require police to obtain a warrant before they obtain the contents of people’s communications, law enforcement can obtain a wealth of other information without a warrant.

The lawmakers’ call for widespread reforms is a welcome development, as too often federal courts across the country keep these records under seal, including even basic docketing information that would only reveal the bare fact that the government applied for a court order to conduct surveillance. This has the effect of making the surveillance largely invisible to the public, journalists, researchers, and academics.

Beyond calling for better aggregated reporting on these requests, the letter, addressed to the administrative body that oversees all federal courts, also calls on courts to begin to create public versions of their surveillance order dockets. The proposal would give the public access while preserving the secrecy around underlying orders, including the name of the individual and the service provider, when necessary. The letter also calls on courts to limit how long any particular case can be sealed to 180 days to prevent the files from becoming indefinitely sealed and falling down a memory hole.

“The courts must embrace serious transparency reforms so that Congress and the American people have the appropriate information in order to conduct effective oversight of surveillance programs and understand the scale of government surveillance,” the letter states.

EFF has long been concerned with the secrecy that surrounds these types of law enforcement information demands. Surveillance does not always lead to criminal prosecutions or other public proceedings, so secrecy at the initial stages may become permanent. This secrecy not only prevents basic reporting about the volume of these types of demands, it also hides any potential abuse of these powers by law enforcement. And as others have noted, the fact that these cases are sealed prevents any meaningful review of whether the surveillance powers are constitutional.

This is why EFF has fought back against such secrecy, including recently filing a case on behalf of The Stranger in Seattle to unseal federal court records in Washington State.

EFF thanks Sen. Wyden for his leadership, and we hope that federal courts embrace the letter’s proposals so that the public can finally get a clear picture of the type of surveillance being authorized by those courts.

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