If you’re a savvy user of technology, you probably already know that your smartphone is a rat, which is to say it’s always willing to tell on you -- where you’ve been, where you are, who you’ve talked to, and what you’ve searched on. And you may already know that numerous government agencies routinely request that data from cell phone carriers.
But what you probably did not know, is that the court orders used by various levels and agencies of government to get their hands on that information are so opaque, so shrouded in secrecy, that those orders “might as well be written in invisible ink.”
That’s a good turn of phrase and it isn’t mine. It was written by Magistrate Judge Stephen W. Smith of the federal bench in Houston, Texas in a unsettling article that will soon be published in the Harvard Business Review.
You might think that most of those secretive court orders are issued in case of national security, or to investigate suspected terrorism. But that’s not at all the case. As Smith points out, those types of requests are handled by the Foreign Intelligence Surveillance Act (FISA) court, which was set up back in the Carter administration. Not surprisingly, its proceedings and records are closed to public view. Since 1979, the FISA court has processed over 28,000 warrant applications and renewals, a rate of nearly one thousand secret cases a year.
But that number is dwarfed by surveillance orders (requests for cell phone and email records) granted under the authority of other legislation, particularly the Electronic Communications Privacy Act of 1986. Even a federal judge has trouble obtaining information about secret surveillance orders. But Smith estimates that in 2006 alone, federal courts issued more than 30,000 orders for electronic surveillance. So in one year alone, secret orders for cases that did not involve national security exceed 23 years worth of surveillance orders issued by the FISA court.
Not only do courts issue these orders in secret, the government (and by that I mean, federal, state and local) can get them rather easily. As Adam Liptak, who covers the Supreme Court for the New York Times wrote recently: “If all officials want to know is whether someone was near a cellphone tower on a given date, say, or whom that person called or e-mailed last month, the law says the government need only demonstrate to a judge that there are ‘reasonable grounds to believe’ that the information sought is ‘relevant and material to an ongoing criminal investigation.’”
All of the above makes a mockery of the protections against unreasonable searches and the transparency of court proceedings enshrined in the Constitution. Earlier this week, I argued that if you’re really concerned about invasions of privacy by Facebook and other social media sites and apps you can stop using them. Regulating Facebook to protect our privacy is a bad idea. But putting a stop to secret surveillance is something that Congress should stop. Let your representatives know how you feel.