In a sense, lawyers involved in federal criminal defense know all about it, yet do nothing. It’s not for lack of caring, but because the problem is so huge and intractable, the reality of it so scary, that we block it from our minds. But now that Houston Magistrate Judge Stephen W. Smith has written a Harvard Law & Policy Review article spilling the beans, it can be ignored no longer.

Your smartphone?  Your cloud computing? It’s like handing your information to the government on a silver platter, and you will never know they’ve got it.

By now, many are aware of the secret Foreign Intelligence Security Act (FISA) court, providing for our security from foreign agents (and anybody else who just happens to get named in a FISA warrant).  It functions in secrecy, since you can’t have spies knowing about warrants to catch them.  Scary stuff if abused, right?  Not really, as it’s the ugly stepsister of secret court proceedings. No need to go anywhere near FISA, as it turns out, because there is a far easier way to do the dirty in America without anyone ever knowing.

But the FISA court is not number one in the secrecy parade, not by a long shot. According to a recent study by the Federal Judicial Center, there is another federal docket that handles tens of thousands of secret cases every year.3 That docket is presided over by federal magistrate judges in United States district courts around the country. Most of its sealed cases are classified as “warrant-type applications,” a category that includes not only routine search warrants but also various forms of electronic surveillance, such as the monitoring of electronic communications and data transmitted by the cell phones, personal computers, and other digital devices that now dominate our everyday lives. This type of electronic surveillance is regulated principally by the Electronic Communications Privacy Act of 1986 (ECPA).

What does this mean to you?  That you (and likely me) have been caught up in some type of investigation and never knew.  And never will know.

Mag. Smith describes the scope of ECPA warrants, which largely cover everything but your actual cellphone calls themselves, which fall under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. One has to wonder whether the restrictions of Title III, had they not been in place from a time when privacy of communications was cherished, would exist today if Congress had a clean slate. Given the vague, generic allegations of nefarious conduct that suffices to get a Title III warrant, however, the artistry of the Department of Justice has largely laid waste to the restrictions anyway.

The complaints about the tens of thousand of secret warrants cover such issues as the utter lack of transparency and the absence of appellate review, thus leaving law enforcement to define the scope since it’s fully ex parte and no contrary arguments are ever heard to question the meaning of the law.  Have you been swept up in an investigation? You would never know. Does the government know who you called, from where, what you googled or left behind in the clouds? Maybe. You can’t say they don’t.

The remedies are fairly straightforward: disclosure and, in appropriate instances, the opportunity to challenge.  You know, the sorts of things laws would allow in a free democratic society.

In his Sidebar column, Adam Liptak calls Mag. Smith’s reforms “modest.” 

Some temporary secrecy is surely warranted — to make sure that suspects are not tipped off, that evidence is not destroyed and that investigations are not disrupted.

“The problem is that these surveillance orders remain secret long after the criminal investigations come to an end,” Judge Smith wrote. Unless criminal charges are filed, he went on, “law-abiding citizens will never know that the government has accessed their e-mails, text messages, Twitter accounts or cellphone records.”

For his part, Judge Smith has proposed some modest fixes. At some point, people whose records have been inspected should be told. At some point, secret court orders should be unsealed. Comprehensive data should be collected, he wrote, to “allow the press and public to better understand the extent of government intrusion into our digital lives.”

In contrast.  Orin Kerr fears this will destroy the efficacy of law enforcement:

Magistrate Judge Stephen Smith argues that everyone who is the subject of an electronic surveillance order ordinarily should receive notice as well as a right to challenge and appeal any ongoing surveillance order that targets them. As best I can understand Smith’s proposal, the government would not only have to get a court order to take any surveillance steps, but every surveillance step would be ordinarily followed by notice and an opportunity for immediate and full litigation of the legality of the surveillance through at least the Court of Appeals and presumably also the Supreme Court.

The default of notice and opportunity to litigate a court order seems inconsistent with the court order requirement itself: If the point of the court order is to add an ex ante check, presumably the statutory requirement and review by the judge achieves that goal. And while I can see encouraging litigation when the investigation is done — more on this in a minute — tipping off suspects and giving them a way to slow down or stop court-ordered surveillance as the investigation is ongoing would make surveillance too costly and ineffective.

Orin offers a different solution:

In a 2003 article in the Hastings Law Journal, I argued that the solution is to create a statutory suppression remedy for the electronic surveillance statutes. A statutory surveillance remedy would shine a line on the surveillance practices by encouraging defendants to litigate the surveillance statutes just as they do Fourth Amendment issues. That way criminal defendants can litigate the lawfulness of surveillance orders ex post with real facts and real stakes, leading to the needed precedents on the proper interpretation of the surveillance laws.

While I don’t read Mag. Smith’s solution to mean that, by default, everybody gets notice right away, and can immediately challenge the issuance of the warrant (thus tipping off  suspects to their government’s investigation), as I would assume that most ongoing investigations would based on anything remotely resembling sound cause would readily get a pass on disclosure until after the investigation was completed.

Yet, Orin’s problem, that premature disclosure would make investigations unduly difficult has a point. Despite all the failings of the secret, one-sided, vague system, some of its targets are, indeed, bad dudes who need to be stopped. The desire to keep the government from running roughshod over rights is in eternal conflict with the desire to stop criminals from harming other people.

The solution offered by Orin, however, only helps those charged with crimes, leaving all the innocent (or at least not guilty enough to get prosecuted) in the dark, clueless and helpless.  And even as to criminal defendants, the notion of being able to mount a successful ex post challenge is more fantasy than reality. Judges are notoriously reluctant to overturn their own warrants, no less those of other judges. The concept is fine in theory; in practice, not so much.

What we’re left with is the same old massive secret game played by the government on its own, with essentially unfettered authority to obtain all the data our smartphones and computers can give away. The best we can hope for is to learn about it later, long after any opportunity to stand up for our own privacy is gone.  Congress and the DOJ (and a certain lawprof) see this as a necessary evil in the fight against crime. And if the fight against crime is the predominant concern, they’re right.

But know that it can easily be your data, your whereabouts, your searches, your cloud, sitting in a government data file somewhere, just in case you touched the life of someone the government wanted to get. Or you are someone the government wanted to get. And you will never know. And even if you did, there’s not a damn thing you can do about it.