By Jennifer Valentino-DeVrie
The Wall Street Journal
In eight years as a federal magistrate judge in Texas, Brian Owsley approved scores of government requests for electronic surveillance in connection with criminal investigations—then sealed them at the government’s request. The secrecy nagged at him.
So before he left the bench last year, the judge decided to unseal more than 100 of his own orders, along with the government’s legal justification for the surveillance. The investigations, he says, involved ordinary crimes such as bank robbery and drug trafficking, not “state secrets.” Most had long since ended.
A senior judge halted the effort with a one-paragraph order that offered no explanation for the decision and that itself was sealed. Mr. Owsley’s orders remain buried in folders in a federal courthouse overlooking Corpus Christi Bay. “It’s like something out of Kafka,” says Mr. Owsley, recently a visiting law professor at Texas Tech University.
Across the U.S., thousands of similar law-enforcement requests for electronic monitoring are likewise locked away from public view, even after the investigations that spawned them have ended. In most cases, they stay sealed indefinitely—unlike nearly all other aspects of American judicial proceedings. Courts long have presumed that search warrants, for example, eventually should be made public.
Several judges and former prosecutors say most of the files under consideration don’t involve the kind of national-security matters that led the National Security Agency to gather phone data on millions of Americans. Yet the sealed cases involve some of the same kinds of electronic-tracking methods: monitoring numbers dialed and received by specific phones; recording the “to” and “from” lines in email communications; tracking phone locations; and in some cases, so-called tower dumps, which reveal all the cellphones connected to a single transmission tower at a specified time. Getting permission to use the techniques is easier than getting a search or wiretap warrant.
There is general agreement that judges should be able to keep some material about ongoing probes hidden from public view. What Mr. Owsley and some other federal magistrates question is whether investigators are pushing the boundaries of what is allowed under the federal law enabling the electronic surveillance. The ubiquitous confidentiality, they say, makes it difficult for the public and lawmakers to monitor whether the U.S. is abiding by the law’s intent.
“Congress can’t regulate what it can’t see,” says Stephen Smith, a Houston magistrate judge who has written extensively on electronic surveillance. “In fact, it’s difficult for me to find out what’s going on in another district if the case is sealed.”
The government argues that orders need to be sealed to prevent surveillance targets from learning they are under investigation, which could prompt them to change their communication patterns or flee. Prosecutors don’t want to let “associates who are still under investigation become aware of specific investigative techniques,” said Patricia J. Kenney, an assistant U.S. attorney in the Northern District of California, in a court declaration in September.
Data obtained by The Wall Street Journal from the Justice Department and various federal district courts suggest that electronic-surveillance orders have increased over the past decade and that the vast majority remain sealed. The Journal this week filed legal motions in a Texas federal court to unseal several cases, including some of the former Judge Owsley’s.
The increases come amid an explosion in the number of people regularly using cellphones and email. As tools for monitoring electronic communications become more accessible to investigators, such tracking has become more routine and useful in criminal investigations.
Federal courts allowed one surveillance tool called a “pen register”—which records dialed phone numbers and Internet addresses—18,760 times in 2012, according to data released by the Justice Department after a Journal request. That is more than triple the number in 2003, when there were 5,922 such orders.
Requests for location data on phones and vehicles, in particular, increased in the federal courts that provided long-term data. In one of the busiest districts, the Southern District of Florida, requests for cellphone location data and other electronic tracking more than quadrupled in the past decade, according to a Journal analysis.
In the Houston division of the Southern District of Texas, another busy court, requests for detailed location data and tracking rose from 16 in 2004 to 150 in 2013.
“There are all sorts of techniques that can be used now,” particularly with cellphone data, says Joel Gonzalez, a partner at Cote & Gonzalez in San Antonio and a former assistant U.S. attorney in the Southern District of Texas. Such data can establish communications patterns among groups of suspects, for example, or tie someone to a location near where a crime occurred.
The Journal contacted 25 federal districts about sealing procedures and reviewed more than 2,000 records of court filings on electronic-surveillance applications from three of the federal districts with the largest criminal caseloads. More than 90% of the applications were listed as being under seal.
The Western District of Texas, the nation’s busiest last year by number of criminal cases, stores its surveillance orders in the basement of the John Wood Courthouse in San Antonio. They sit in hundreds of red file folders on metal shelves behind a thick-glass window and a door locked with a keypad.
“Absolutely no information can be given out” on the orders, said divisional-office manager Michael Oakes. “It’s pretty strict here.”
Unlike with search or wiretap warrants, 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.
The government has said that even after a suspect is apprehended or an investigation dropped, unsealing can reveal informants and cooperators and the technical tools used. A Justice Department spokesman said sealing also protects the privacy of people under surveillance but ultimately never charged with a crime, and that the department turns over any orders that might be “exculpatory or otherwise useful” to defendants. Any criminal charges that arise from an investigation are generally a matter of public record.
Decisions about secrecy of most electronic-surveillance orders fall to magistrate judges, who are appointed to eight-year terms by federal district judges and handle pretrial duties including approval of search warrants.
Some magistrates and privacy advocates say surveillance tools have advanced in ways not anticipated by the laws the Justice Department often relies on. They say the principal law governing this type of electronic surveillance—the Electronic Communications Privacy Act, which took effect in 1986, before widespread Internet usage and location tracking—is outdated.
The law passed following a Supreme Court decision saying investigators don’t need a warrant to get information on the phone numbers people dial. Congress decided that the government should get some kind of court order. When the law took effect, investigators mainly applied it to land lines. Now, they use it to collect various information about cellphones and Internet use.
To get a court order for a pen register under the law, the government must certify that the information likely to be obtained is “relevant to an ongoing criminal investigation.” That standard is well below the “probable cause”—generally, a reasonable belief based on factual evidence—required for a search warrant or a wiretap order. A related law enables the government to get subscriber records from communications companies, including information on previous phone locations and calls made, without a warrant.
In many districts, the government has combined pen-register requests and records requests to get ongoing cellphone location data on suspects.
The Justice Department spokesman says the government has a general policy of seeking a search warrant when getting information on people who are in places where they would have a “reasonable expectation of privacy,” such as inside their homes.
There has been periodic talk in Congress about amending the law, including requiring warrants for location tracking, but no significant changes have passed.
The communications companies that must divulge the information stipulated in the orders also aren’t allowed to talk about the surveillance, says lawyer Mark Eckenwiler, who represents such companies at Perkins Coie LLP and until 2012 was the Justice Department’s primary authority on federal surveillance law. “I regularly see this come across my desk, sent to our clients,” he says. “They don’t even say ‘until further order of the court’ or that the court can or will modify it. It’s just, dead stop, a permanent injunction”—something he contends violates the First Amendment.
The Justice Department says it makes “no broad generalizations or presumptions” about when matters should remain sealed and that sealing doesn’t always need to be permanent.
But when it comes to unsealing old orders, especially many at once, the department sometimes has balked, concerned about putting people in danger. “It is difficult, years after the sealing of applications and orders, to determine the potential harm from the unsealing of these documents,” Ms. Kenney, the assistant U.S. attorney, said in her recent court statement regarding a Freedom of Information Act request by the American Civil Liberties Union to get information on location tracking. She added that a systematic review of sealed documents would be impractical.
In the U.S. District Court in Arizona, a proposed change to court rules would unseal pen registers and tracking-device warrants after 180 days unless the government showed reason for it to stay sealed.
A few magistrates have individually challenged sealing procedures. In 2008, Magistrate Judge Smith began unsealing all his new surveillance orders after six months unless prosecutors actively moved to extend the secrecy, arguing that indefinite limits on disclosure violated the First Amendment.
Two of his unsealed 2010 cases reveal the nature of electronic-surveillance orders. In one case, investigators wanted a pen register and records order to track phone numbers and cellphone location for a suspect they believed was trafficking in methamphetamine. In the other, they sought the same to investigate a suspected heroin dealer.
Some applications involve more controversial technology. In 2011, magistrate judges in California complained that investigators were applying for pen registers without explicitly saying they wanted to use sophisticated cellphone-location trackers, called “stingrays,” which can be used to locate suspects. Stingrays gather phone-number information, along with other data transmitted by cellphones, by acting as fake cellphone towers. The 1986 surveillance law doesn’t contemplate such technology.
Mr. Owsley, the former Texas magistrate judge, says he had similar concerns about applications for “cell-tower dumps,” in which agents can obtain records of all phones within range of specified cell towers over time—including people who aren’t suspected of a crime.
During his years on the bench, he says, he grew skeptical about some requests. In 2007, he denied a government request to track a suspect using the “E911” electronic cellphone system—which determines the location of the caller—without establishing probable cause.
In late 2010 or early 2011, he says, a prosecutor wanted to use a pen register to get the phone number of an unknown cellphone used in the Three Rivers federal prison in southern Texas. Mr. Owsley couldn’t see how a pen register could be used to do such a thing. He says he figured the U.S. wanted to use a stingray, the device encountered by the California judges.
He says he pressed the prosecutor about the legal authority to do so. Before Mr. Owsley could get a response, prison officials located the cellphone, making the issue moot. The case remains under seal, making it impossible to identify the prosecutor involved.
In 2012, a prosecutor applied to Mr. Owsley to get cellphone records for a murder case, he says. The victim’s cellphone had been stolen, and investigators believed the suspect had a cellphone, too. Investigators wanted bulk information from mobile towers so they could narrow down a list of phones that might belong to the suspect, according to Mr. Owsley’s order in the case.
Mr. Owsley suspected the application was for a cell-tower dump and questioned the prosecutor about it. “It became apparent that he did not understand [the technology] well,” Mr. Owsley wrote in a September 2012 opinion. Mr. Owsley denied the request, ruling that the law that allows investigators to get “customer records” from telecommunications providers without a finding of probable cause didn’t address cell-tower dumps. He told prosecutors to seek a warrant.
Aside from his published order, the matter remains sealed, and the fate of the case is unclear. A Justice Department spokeswoman in Houston rejected the notion that government lawyers don’t understand the technology.
Before leaving the bench, Mr. Owsley had his clerk locate every sealed case he had handled—more than 200, he believes, including matters unrelated to surveillance orders.
Mr. Owsley, who details more about his legal reasoning in a coming California Law Review article online, sought an OK from government lawyers to unseal the surveillance orders. He says the government didn’t object to unsealing older matters. The Justice Department declined to comment on the matter.
Mr. Owsley says he got to work ordering documents unsealed. Then a senior judge, Hayden Head, stepped in. He called Mr. Owsley to his chambers and told him he was blocking his effort.
Judge Head, a 1981 appointee of President Reagan, said in a recent interview he believed unsealing so many orders at once was “imprudent” and “unusual.” He cited “possible implications for future investigations, ongoing investigations or security.” He said the only proper way to unseal the orders would be after careful review on a “case-by-case basis.”
Judge Head’s sealed order vacating the unsealing efforts includes a list of 146 docket numbers for applications that Mr. Owsley tried to make public.
All remain under seal.