Privacy Law

Electronic-surveillance requests remain sealed; many courts can't even say how many queries exist

Electronic surveillance requests in thousands of criminal investigations across the United States remain sealed indefinitely, even after the probes are closed.

The Wall Street Journal (sub. req.) has a story on how the “ubiquitous confidentiality” of government requests for electronic surveillance makes it difficult to discern whether the government is abiding by the law.

The newspaper has filed motions to unseal several surveillance requests, including several handled by former U.S. Magistrate Judge Brian Owsley of the Southern District of Texas, according to the story and the Wall Street Journal Law Blog. Owsley sought to unseal more than 100 of his own orders before he left the bench last year, but a senior judge ordered a halt to the process in an April 2013 order.

Nineteen of the 25 busiest federal courts contacted by the newspaper weren’t able to provide the number of electronic-surveillance requests filed, according to a different Wall Street Journal Law Blog post. In the three federal district courts with the largest number of criminal cases, more than 90 percent of 2,000 applications for electronic surveillance reviewed by the newspaper were under seal.

Records kept secret include requests for “pen registers,” which record dialed phone numbers and Internet addresses. Others are request for cellphone location data.

“Unlike with search or wiretap warrants,” the story says, “prosecutors don’t have to eventually disclose the surveillance to the target. Unless prosecutors don’t request a seal at the outset, or a judge stipulates otherwise, the surveillance orders stay confidential indefinitely under the law. “

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