Hello World

By Julia Angwin

Fighting Government Secrecy About Surveillance

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Dispatches from Editor-in-Chief Julia Angwin
This Week
Hello, friends,
Every year, the federal judiciary publishes a record of how many wiretaps were conducted in the United States. Wiretaps occur when law enforcement officers obtain a special kind of search warrant that allows them to listen in on a target’s real-time communications—including phone calls, text messages, emails, and other electronic communications.
But there is no similar disclosure of other invasive surveillance techniques, such as when police obtain so-called “geofence” search warrants to scoop up data about all the cellphones located in a certain area at a particular time. And the limited public data available about the use of these types of surveillance techniques can be confusing and contradictory.
This week, The Markup reporter Alfred Ng and investigative data journalist Maddy Varner dug into the discrepancies between how many geofence warrants Google says it received between 2018 and 2020 from agencies operating in California (3,655 warrants!) and how many such warrants California law enforcement agencies say they issued in that same time (41 warrants). 
“When the providers are telling you one thing, and the government is telling you another, then something’s broken, and it needs to be fixed,” Albert Gidari, the former consulting director of privacy at the Stanford Center for Internet and Society told The Markup.
To understand the issue better, I interviewed retired federal magistrate judge Stephen Wm. Smith, who has been crusading against the judicial secrecy surrounding surveillance techniques for more than 15 years. Smith served as a federal magistrate judge in Houston from 2004 to 2018, during which time he wrote several ground-breaking opinions on electronic surveillance. He is a nonresident fellow at Stanford Law School’s Center for Internet and Society and an advisory member of the American Law Institute’s Project on the Principles of Policing. 
Fittingly, I spoke to him this week when The Markup was awarded the Champions of Freedom Award from the Electronic Privacy Information Center. It was an honor to be included in a lineup along with the other luminary recipients: Shoshana Zuboff, author of “Surveillance Capitalism”; Joy Buolamwini, founder of the Algorithmic Justice League and coauthor of a groundbreaking study of racial bias in facial recognition software; and Vice privacy reporter Joseph Cox. 
My interview with Judge Smith is below, edited for brevity and clarity.
Stephen Wm. Smith
Stephen Wm. Smith
Angwin: How did you become aware that surveillance warrants were routinely being sealed, and why did it concern you?
Smith: I was appointed as a magistrate judge for the Southern District of Texas in 2004. Before that, I’d been a civil litigator specializing in employment law, so I had never done any criminal defense or prosecuting work. What struck me when I took the bench was how many of these cases I was working on were sealed. It’s tradition in any judicial system, especially the American judicial system, that courts are open, and they do their business in public. In fact, courts have to do their business in public in order for the people to accept them as legitimate. They make their decisions based on the public record and issue publicly available opinions to explain their reasoning. That wasn’t happening on these warrant dockets. 
Angwin: Tell me a bit about the so-called “magistrates revolt”—where you and Judge James Orenstein [a federal magistrate judge for the Eastern District of New York from 2004 to 2020] were the first ones to write public decisions pushing back at the government’s cellphone surveillance requests.
Smith: In 2005, we were getting these requests from law enforcement to compel phone companies to produce real-time location tracking information on target phones. The government was arguing that they didn’t need a traditional search warrant based on probable cause to get this data. They pointed to a combination of statutory provisions that were in the Electronic Communications Privacy Act, which allowed access to certain types of information from providers on a lesser standard, call it reasonable suspicion, just for shorthand.
I wrote a memo setting out my reasoning as to why these requests should trigger Fourth Amendment protection requiring a warrant based on probable cause. I sent that memo to the local U.S. attorney, and I said, ‘This is what I’m going to rule unless you can persuade me otherwise. Tell me where I’m wrong.”
The local U.S. attorney forwarded my memo to the DOJ in Washington, which put together a 40 to 50 page memo trying to rebut the arguments that I had made. I was not convinced. But I was happy I did that, because I knew at least I had an understanding of what the government’s legal arguments would be, and I was in a position to say, “O.K., this isn’t gonna fly.” 
So in October 2005, I published my first opinion denying prospective cellphone tracking information. In the meantime, in August, Jamie had beat me to the punch, writing the very first decision on this coming out the same way but based on slightly different arguments.
Shortly thereafter, a handful of other judges joined us and published their own decisions. It got to the point where enough of these opinions had been written that Jamie said, “We’ve got enough judges now to form a bowling league.” So we designed a bowling shirt with cell towers for pins and with a little logo on the back saying, “Bowling For Dialers.” From that point on, every time a magistrate judge wrote another opinion on that issue, Jamie would send them a bowling shirt. I’ve still got mine hanging in my closet.
Angwin: Ultimately the Supreme Court ruled that law enforcement needed probable cause for cellphone surveillance. But there is plenty of other technological surveillance still going on. I’m curious what you think the most invasive warrant is out there right now?
Smith: I think by far the most invasive surveillance tool that the government has is remote access to computers or government hacking. This tool allows the government to remotely access any targeted computer, basically anywhere in the world. They can not only insert malware into that computer allowing them to search the files or the data on that computer, but they can turn on the computer’s microphone and record your conversations, and they can turn on your computer’s camera and record you while you’re sitting in front of your computer, doing what we all do every day. And they can do that in real time. That is a hugely powerful tool. 
I wrote the first published opinion on this topic back in 2013. I argued that this type of search should require a super warrant, which is what we require for wiretaps, since I think it’s far more intrusive than an ordinary wiretap. And so it seems to me that the additional protections that we have under the Constitution for wiretap searches at a minimum ought to apply to hacking searches.  
I recently wrote an article about how Europe has responded to this. Many EU countries place a ton of restrictions on this type of surveillance tool, even more than we have for wiretaps. I think they’re taking the right approach here. Because it’s scary. Personally, I would think it much less intrusive for the FBI to listen to my phone conversations than to look over my shoulder for 30 days and take pictures of me while I’m sitting in front of my computer. 
Angwin: What happened when you denied a warrant because you thought it was unconstitutional or too broad?
Smith: I turned down a number of requests but more often just modified them by editing out the problematic stuff. But law enforcement knew that there were other judges on the court and other courts that they could go to that were perhaps more friendly, that would give them what they wanted. Without accusing anybody of bad faith, it was a system that allowed for judge shopping. It happened in our court, the judges who tended to favor warrant requests got a much larger share of the warrant docket. So you have a system of judge shopping that’s still in place, especially in urban areas like Houston or New York.
Angwin: It makes sense to me that surveillance warrants might be kept private while they are ongoing, but were they opened after an investigation was finished?
Smith: Well I came to find out, in talking to my colleagues, that these warrants were just routinely sealed. I did a little research and found out that they’re not only sealed for the temporary period during the investigation, but they’re sealed long after the case has been disposed of. So in our courthouse, we had warrant requests that were over 15 years old that were still sealed, and I did a little study, and it turned out that once a case was initially sealed, it was hardly ever unsealed, and 99 percent of the time, if it were initially sealed, it would stay sealed forever.
Angwin: What are the dangers of having these warrants, for things like cellphone location tracking, sealed forever? 
Smith: Well there wasn’t any oversight of what we were doing, there wasn’t any accountability. There weren’t any public court decisions in this area. Nothing had been clarified by the appellate courts or the Supreme Court because nobody was appealing these warrant orders, because nobody was aware of them. There was nobody looking over our shoulder. And so that meant that we could do whatever we wanted. We were the law.
And geofence warrants are the new thing. Basically, the idea is the government goes to an internet provider, most often Google because they have most of the location data, and asks who was in the area at the time this crime was committed. That’s a problem, especially in metropolitan areas like Houston or Chicago, where you’re asking for 15 minutes worth of geolocation information from Google in a particular area and you get thousands of devices that have no connection to the crime. So if people don’t know that their records are being accessed, then they don’t have any reason to complain. The public doesn’t have any clue as to how much of this is being done. 
And unfortunately, we see the real life consequences of this. When you look at especially product liability cases, or the opioid cases, all those cases that have been kept under seal by judges that have resulted in concealing a lot of damaging information that, had it gotten out earlier, might have saved lives. That’s an extreme example, but it illustrates the dangers of secrecy and the advantages of having an open court system. 
I wouldn’t call myself a privacy advocate. But I’m a transparency advocate. I want things to be done in the open so that people can hold us accountable like they do every other government official.
As always, thanks for reading.
Best,
Julia Angwin
Editor-in-Chief
The Markup
 
From The Markup
 
Thousands of Geofence Warrants Appear to Be Missing from a California DOJ Transparency Database
Leaked Facebook Documents Reveal How Company Failed on Election Promise
How Big Tech Is Pitching Digital Elder Care to Families
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