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Electronic Communications Privacy Act Reform: Role of Magistrate Judges in Electronic Surveillance

Electronic Communications Privacy Act Reform: Role of Magistrate Judges in Electronic Surveillance

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Published by: mary eng on Apr 09, 2013
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04/10/2013

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BeforetheCommitteeonthe
JudiciarySubcommittee
ontheConstitution,CivilRights,
and
CivilLiberties2237RayburnHouseOffice
Building
Washington,
D.C.20515
HEARINGONELECTRONIC
COMMUMCATIONSPRIVACYACTREFORM
ANDTHEREVOLUTION
IN
LOCATION
BASEDTECHNOLOGIESANDSERVICESJune
24,
2010
WrittenTestimony
of
United
States
Magistrate
JudgeStephen
Wm.
Smith
 
Mr.
Chairman,
Ranking
Member,and
Members
of
the
Subcommittee:
I
am
honored
by
your
invitation
to
testify
at
today’shearing.
I
am
a
U.S.
MagistrateJudge
for
theSouthern
District
of
Texas,
sitting
inHouston.
While
this
testimony
is
my
own,
and
not
offered
asthe
official
position
of
anygroup
or
organization,
it
is
a
view
from
the
trenchessharedbymany
of
myfellowmagistrate
judges
across
the
country.Before
reaching
the
substance
of
mytestimony,
it
might
be
helpful
to
outline
the
role
of
magistrate
judges
in
handling
law
enforcementrequests
under
ECPA.
1.
Role
of
Magistrate
Judges
in
Electronic
Surveillance’
There
are
over
500
federalmagistrate
judges
serving
in
district
courtsaround
thecountry.
In
addition
to
civilmatters,our
responsibilities
onthecriminal
side
generallyincludealmosteverythingexceptconducting
felony
trials.
We
conduct
initial
appearances,
appoint
counsel
for
indigents,
set
bailconditions,holddetentionhearings,issuecriminalcomplaintsand
arrestwarrants,takegrand
jury
returns,
handle
extraditionrequests,
misdemeanortrials,competency
hearings,
and
suppressionmotions.
One
of
our
chief
functions
is
to
issuesearchwarrants
and
otherorders
in
aid
of
criminalinvestigations.Theseincludeelectronicsurveillance
ordersfor
penregisters,trapand
trace
devices,trackingdevices,2703(d)
ordersfor
telephone
ande-mail
account
recordsand
activity.
That
is
where
our
experiencewithECPA
comes
in.
Although
differentdistricts
mayhandleitdifferently,in
most
districts
there
isat
least
one
magistrate
judge
oncriminal
duty
at
all
times,
ready
to
take
a
call24
hours
a
day,
7
days
a
week.
In
the
Houston
division
we
have
5
magistrate
judges,
andwe
rotate
the
criminaldutyamongourselveseverytwoweeks.While
on
duty
we
carry
either
a
beeper
or
dedicated
cell
phone
to
allow
instant
accessby
law
enforcement.It
is
not
uncommon
for
a
magistrate
judge
to
be
contacted
at
night
or
on
a
weekend
to
issue
electronicsurveillance
ordersincases
of
emergency,such
as
a
kidnaping
or
aliensmuggling.Withrareexceptions,ECPAorders
pertain
to
ordinary
crimesand
criminals,
not
national
security
or
terrorism
cases.
The
process
is
exparte,
meaningonly
one
party
law
enforcement—appears
before
the
magistratejudge.
Sincethis
is
at
the
criminal
investigation
stage,
no
Forpurposes
ofmy
testimony,“electronic
surveillance”
includes
pen
registers,
trap
andtrace
devices,
trackingdevices,cell
site
information
(“CSI”),storede-mail,
telephone
and
e-mail
activity
logs,
and
customer
accountrecordsfrom
electronic
serviceproviders.Wiretaporders,
which
are
issued
onlyby
district
judges,
are
notincluded.
 
defendant
hasyet
beencharged
so
no
defense
counsel
is
there
to
challenge
the
government’srequest.Likewise,
no
representative
of
the
electronic
service
provider
or
the
targetphone’ssubscriber
is
present.
In
fact,
the
orders
routinely
containgagorders
precluding
theservice
provider
from
advising
their
customers
that
the
government
is
accessingtheir
cell
phone
or
e-mail
accountrecords.
The
publicrarely
learns
aboutthese
orders,
even
long
after
issuance,
becausethey
are
routinelyplacedunderindefinite
(i.e.,
permanent)
seal.
Actual
data
on
the
number
of
electronicsurveillanceordersissuedunderECPA
is
notreadilyavailable,
as
far
as
I
know.
However,
some
idea
canbe
gleanedfrom
a
recentsurvey
bythe
FederalJudicial
Center.
Thisstudy,
which
looked
atthe
prevalence
of
completelysealed
cases
in
federal
court,
surveyed
everyfederal
case
filed
inall
federalcourts
during
2006.
It
foundthat
of
the
97,155
criminal
matters
handledbymagistrate
judges
that
year,
15,177
werecompletelysealed
from
public.
The
vastmajority
of
thosewere
warrant-relatedapplications.Anotherdatapoint
is
provided
by
a
local
survey
of
such
orders
issued
byourcourt
in
Houstonfrom
1995
through
2007.
According
to
thatsurvey,Houston’s
five
magistrate
judges
issued
a
total
of
4,234electronicsurveillance
orders,
or
about
325
every
year.
Consideringthatthisvolume
was
generatedby
less
than
1%
of
thefederal
magistrate
judges
in
thecountry,
itis
safe
to
conclude
that
the
2006total
in
the
FJC
study
was
not
a
fluke.A
reasonableestimate
is
that
the
total
number
of
electronicsurveillance
orders
issued
at
thefederalleveleach
yearsubstantially
exceeds
i0,0O0.
2
ECPArequirestheAttorneyGeneral
to
report
to
Congressthe
number
of
pen
registers
applied
for
annually.
See
18
U.S.C.
§
3126.
However,
there
is
no
separatereportingrequirement
for
trackingdevicesunder
§
3117or
locationinformationobtainedunder
§
2703(d).
The
study
is
available
online
at:
www.fjc.gov/public/pdf.nsf’lookup/sealcafc.pdf’$file/sealcafc.pdf.
See
In
re
Sealing
&
Non-Disclosure
ofPen/Trap/2703(d)
Orders,
562
F.Supp.2d
876,
895
(S.D.
Tex.
2008).
Thisdoesnot
include
the
number
of
suchorders
issued
by
state
courts.
2

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