Electronic Spying on Criminals Leads to Battle Over Sealed Files

Tuesday, 03 Jun 2014 09:58 AM

By Drew MacKenzie

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Secret electronic spying during criminal investigations has soared in the past decade, as controversy rages in courtrooms across the country to unseal old warrants and make them public.

The electronic tracking systems are similar to the National Security Agency's mass phone and Internet data collection of millions of Americans, according to The Wall Street Journal.

The techniques involve monitoring phone calls, recording email communications, tracking phone locations, and carrying out so-called tower dumps, which list all the cellphones connected to a single transmission tower at specific times.

Law-enforcement officers often apply to judges for electronic surveillance approval because it is easier to obtain than a search or wiretap warrant, according to the Journal.

Urgent:
NSA Spying: Do You Approve or Disapprove? Vote Now.

The orders are usually sealed, even though they are not cases of national security because, prosecutors say, potential criminals may change their communication preferences if they learn they are being probed, or simply flee.

Patricia Kenney, an assistant U.S. attorney in the Northern District of California, said in a court declaration that prosecutors don't want to let people who are "under investigation become aware of specific investigative techniques."

According to the Journal, thousands of electronic monitoring warrants have been sealed and cannot be viewed by the public, even though many of the cases have been closed. Most search warrants can eventually be made public.

The rapid increase in electronic surveillance has been the result of the widespread use of cellphones and email, which can be used to possibly convey illegal transactions or conversations. The monitoring is becoming a routine part of criminal investigations as tools for such spying become more available.

In fact, electronic warrants using a tool called a "pen register," which records phone data and Internet addresses, were approved by federal courts 18,760 times in 2012, more than triple the number in 2003, according to information released by the Justice Department to the Journal.

There has also been a surge in the request for location warrants involving cars and phones, the Journal said.

In the Southern District of Florida, requests for cellphone location data and other electronic tracking systems more than quadrupled in the past 10 years. In the Houston division of the Southern District of Texas, requests for detailed location data and tracking rose from 16 in 2004 to 150 in 2013.

The Journal reported that the government says that even when a suspect is found guilty, or an investigation is dropped, unsealing the electronic warrant can identify informants and put their lives in danger while also revealing the type of technical tools that were used.

The Justice Department says it makes "no broad generalizations or presumptions" about how long electronic spy warrants should remain sealed, meaning that they are not always permanent.

However, in the U.S. District Court in Arizona, there are plans to unseal pen registers and tracking-device warrants after 180 days unless the government showed good reason for them to stay sealed.

In Texas, former federal magistrate judge Brian Owsley has attempted to unseal 100 government requests for electronic spying in criminal probes that he had originally approved during his tenure while also agreeing for them to be sealed.

He told the Journal that the cases involved ordinary crimes, such as bank robbery and drug trafficking, not "state secrets," and most have since been settled.

"Congress can't regulate what it can't see," Stephen Smith, a Houston magistrate judge, told the Journal. "In fact, it's difficult for me to find out what's going on in another district if the case is sealed."

Urgent: NSA Spying: Do You Approve or Disapprove? Vote Now.

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