The case against permanently sealing pen-register orders

The Wall Street Journal has been litigating in Texas to gain access to sealed, federal judicial orders granting the government electronic surveillance authority, the paper reported today ("Long-term secrecy surrounds electronic monitoring," Oct. 1). The article opened:

A federal judge's recent unsealing of a secret government request for electronic monitoring shines a light on how such applications are kept hidden from the public long after criminal cases that result from them are closed.

The Sept. 2 order, by U.S. District Judge Nelva Gonzales Ramos, came after Dow Jones & Co., publisher of The Wall Street Journal, filed motions in a Texas federal court to unseal 14 cases as part of an investigation into the confidentiality of such surveillance applications.

The unsealed request for monitoring, involving a drug-trafficking case, was filed on Oct. 30, 2007. It sought approval for a "pen register," a common surveillance tool that records dialed phone numbers and Internet addresses. The subject named in the application pleaded guilty to conspiracy to engage in money laundering and was sentenced in 2012 to two years, nine months in prison.

As more people use cellphones and email, prosecutors increasingly are using tools for monitoring those communications in criminal investigations. Federal courts allowed a pen register 18,760 times in 2012, more than triple that in 2003, Justice Department data show.

The government also routinely asks that the applications for such matters be sealed, a move that ends up keeping documents permanently secret in courts across America. Though judges have long kept matters from the public in national-security cases and continuing probes, the spreading move to permanent secrecy of more commonplace criminal cases contradicts a long U.S. tradition of open courts, according to some legal specialists.

"The broader message here is that the government is keeping stuff sealed too long even if it had a basis for sealing stuff initially," said Brian Owsley, a former magistrate judge who initially sealed the Texas case at issue and now is an assistant law professor at Indiana Tech Law School.

I met Judge Owsley at a conference on electronic surveillance last year, and Grits has pointed to Judge Owsley's writing on related topics. He was the first to alert me to this issue of permanently sealed federal surveillance orders.

As it turns out, Texas law poses the same conundrum. Sec. 2(g) of Art. 18.21 of the Code of Criminal Procedure tells judges they "shall seal" such orders with no provision for their unsealing. (State Rep. Bryan Hughes' HB 1608 last session would have changed that "shall" to a "may" and limited the extent to which such orders could be routinely kept secret, requiring that prosecutors show good cause to justify sealing the documents beyond 180 days.)

So this isn't just a federal issue. Indeed, unlike the feds, Texas doesn't even have good data. Office of Court Administration reports record how many search warrants judges issue but don't track lesser orders for pen registers, cell-phone location data, and other personal phone information collected under Art. 18.21.

Also unlike the feds, state courts haven't seen an aggressive media outlet pursue the story the way Wall Street Journal reporters have done. But a quite similar story is waiting to be written regarding pen-register orders Texas state courts if journalists and editors were of a mind to do so.