Thirty thousand “secret electronic surveillance orders” aimed at monitoring Americans’ activity are issued each year, according to a federal judge. Since many lead to no charges, a vast number of people targeted never know they were subjects of a search.
Warrants issued for physical searches usually are made known when a target’s home, vehicle or office is investigated. But in the digital age, searching is done in secret and can remain hidden indefinitely.
… [W]hen surveillance enters the digital realm, secrecy becomes the norm. Digital “warrant-like” requests to access stored e-mail in an online account, or to wiretap an Internet connection, or to obtain “pen register” information, or to track a cell phone, are obtained from magistrate judges, many times in secret dockets that don’t even appear in the federal government’s official PACER document system. They come after one-sided (“ex parte”) proceedings in which only the government is heard. And they are generally sealed, only to be unsealed once a criminal case is filed. If no such charges are ever brought, the search warrants and the affidavits defending them can remain buried in the murkiest bits of the federal court system; even knowing that they exist can be a challenge. ISPs, which are often targets of such orders, may also be forbidden from disclosing them.
… [US Magistrate Judge Stephen Smith’s] estimate finds that 50,000 sealed orders were likely generated by federal judges in 2006, the year the judge analyzes. With 60 percent of these presumed to be ECPA-related surveillance orders, Judge Smith finds that magistrate judges issued more than 30,000 secret electronic surveillance orders that year. To put that in context, “this volume of ECPA cases is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark, and securities cases filed in federal court,” he notes.