Under the Electronic Privacy Act of 1986, estimates one judge, 30,000 secret surveillance orders are made each year.
In a new paper, “Gagged, Sealed & Delivered,” U.S. Magistrate Judge Stephen Smith writes that the volume of such cases “is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark and securities cases filed in federal court.”
This is all done without authorities having to issue a traditional search warrant because of the digital nature of the information sought, according to the judge.
“Through a potent mix of indefinite sealing, nondisclosure (i.e., gagging), and delayed-notice provisions, ECPA surveillance orders all but vanish into a legal void. It is as if they were written in invisible ink—legible to the phone companies and Internet service providers who execute them, yet imperceptible to unsuspecting targets, the general public, and even other arms of government, most notably Congress and the appellate courts,” he writes.
Because the law under which the surveillance orders are made was passed to dictate how electronic investigations were conducted before email and cellphones were commonplace, investigators are given almost free reign in spying on these modes of communication.
Most of the individuals investigated, according to the report, never even know it unless they are charged with a crime.