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How Certain Judges Let The Feds Hide Questionable Spying Activity

from the unfortunate dept

Wed, Oct 12th 2011 8:05pm — Mike Masnick

With the recent unveilling of sealed orders by the feds collecting info from various service providers on the activities of various Wikileaks volunteers, you might wonder how such things get sealed... and how often that happens. It appears quite frequently, but the details (of course) are secret. Julia Angwin at the Wall Street Journal profiles one magistrate judge who has been pushing for others to limit their use of seals, but it sounds like not many are following.

�We diminish our legitimacy when we do things under a blanket of secrecy,� Judge Smith said in an interview. �The only way people can get confidence in what we�re doing is if they can get access to what we are doing and know why we are doing it.�

Judge Smith analyzed the 4,234 electronic surveillance orders issued in his Houston courthouse between 1995 and 2007 and found that 91.8% of them remain sealed today.

Judge Smith says he now sets time limits for the seals on orders that he signs. If prosecutors want to renew the seal, they must request an extension. �It�s more work,� Judge Smith says, �but I think it�s necessary work.�

He said he is worried that �people who aren�t indicted � regular law abiding citizens like you or me,� will never know if their records were obtained in an investigation, he says, �because these sealing orders live on indefinitely.�

This is a huge problem for our supposedly "transparent" government. When it can effectively conduct investigations and never have to admit to them or get any adversarial review over whether or not the investigation itself was legal, you have a system prone to massive abuse. There are certainly times and cases where such seals could make sense. But the idea that so many cases are effectively permanently sealed, it gives the government the ability to spy on people with impunity. You just need to find a magistrate judge willing to accept the government's version of what's happening... and that seems to happen frequently enough.

The full article has even more disturbing details like the fact that a recent survey found that 39% of sealed cases are never even put into the court's system for tracking cases, which would at least provide some info to the public to help analyze how often this kind of thing happens. This kind of secrecy is not how a government is supposed to function. If such investigations need to happen under seal they should always include some sort of expiration date on the seal. Otherwise, the feds know that as long as they can convince a judge (without the other side there to argue), they're effectively home free, and no one will scrutinize the investigations.

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Filed Under: government, oversight, sealed court documents

16 Comments

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Anonymous Coward, 12 Oct 2011 @ 8:41pm

We have ceased to be a nation of laws and we are now a nation of bureaucrats and lawyers.
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Anonymous Coward, 12 Oct 2011 @ 8:42pm

uh oh, mike post, incoming closet fetishists dismantling everything he says
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- Anonymous Coward, 12 Oct 2011 @ 8:56pm
  
  Re:
  Do you mean dismantling the part where he's a closet pirate or the part where he's a closet satanist?
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  - Anonymous Coward, 12 Oct 2011 @ 9:00pm
    
    Re: Re:
    wait... mike is a satanist too now? when did this happen
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  - Anonymous Coward, 12 Oct 2011 @ 9:01pm
    
    Re: Re:
    He's a closet broadbrusher too!
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  - The eejit (profile), 12 Oct 2011 @ 11:21pm
    
    Re: Re:
    Do what thou wilt is the whole of YOUR law.
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    - Neppe (profile), 13 Oct 2011 @ 8:09am
      
      Re: Re: Re:
      Quoting A.C. to an AC.
      I found that to be oddly hilarious :)
      Thanks
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sehlat (profile), 12 Oct 2011 @ 9:02pm

Trust *AND* Verify
If any person or organization is to be trusted, there must be feedback. That includes the ability to observe both what is done and its effects. Anything that is done in secret cannot, therefore, be trusted, no matter what we are told is being done, simply because we are denied information by which we can judge.

John 3:20 put it best: (KJV) For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved.
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- MrWilson, 12 Oct 2011 @ 9:09pm
  
  Re: Trust *AND* Verify
  Not just feedback though. There must be in-built repercussions for violations of the public trust. And not just token punishments. Those we trust must fear violating the public trust. How many judges would be willing to cover up misdeeds with their seals if they knew we'd oust them and throw them in jail? Allowing corruption to proliferate sounds like treason to me.
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Gumnos (profile), 13 Oct 2011 @ 4:39am

I know I've been reading Techdirt too long when...
my first thought on reading this article was "Hmm, there's a business opportunity here for somebody to set up an auto-request-extensions business because this judge isn't meeting the needs of his government customers..."
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Jose_X, 13 Oct 2011 @ 5:08am

It's the People's nation, darn it!
I would like to see a US Pirate party adopt a popular platform and include strong words about transparency.. eg, that judge's example is something I would like to see become law.
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Thomas (profile), 13 Oct 2011 @ 6:07am

The feds..
can always find a judge who will do their illegal bidding. Judges know there are benefits to doing whatever the spooks tell them to do; you might find a nice envelope with cash in it.

There are way enough dishonest and shady judges in the country at both state and federal level to allow the government to get away with pretty much anything. This extends all the way to the SCOTUS.
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Vic (profile), 13 Oct 2011 @ 8:41am

Non-peeks and hidden peeks
Many peeks are really only for information purposes. Almost like rattling the door knob to check that it's locked. They don't 'exist', while building a picture or a map of activity. If something looks tasty then they add a hidden request, CYA in case the legal beagles need it later.
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- John Fenderson (profile), 13 Oct 2011 @ 2:05pm
  
  Re: Non-peeks and hidden peeks
  Many peeks are really only for information purposes.
  
  And those are unconstitutional and just a big of a problem as malicious prosecution. No wonder they don't want us to know the extent of their lawbreaking.
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PrometheeFeu (profile), 13 Oct 2011 @ 10:26am

I think a good approach would be to limit the number of sealed orders. So for instance we could say that no more than 10% of surveillance orders may be sealed. (or more realistically, sealed for longer than 3 months) Keep a count of sealed and unsealed orders and if at any time the number creeps above 10%, judges are no longer allowed to issue sealed orders until the number has fallen back under 10%. Would it make sense as a policy? Not really. But it would make sense as an incentive. It would force agencies to hoard their number of allowable sealed orders using them only when absolutely necessary.
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The Devil's Coachman (profile), 13 Oct 2011 @ 5:25pm

Any sealed order can be broken.
If I want to find out what is in a sealed order, believe me, it can be done. It takes some money, and maybe a connection or two, but it is entirely, easily doable. Someone had to type it. Someone else had to file it. Somebody had to read it. Lotta people in that chain, so it's just a matter of finding the right one and the right buttons to push. You think social engineering is confined to the internet? Then you're hopelessly deluded. The key thing is - don't let anyone else know that you know. Or they have to go away.
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