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June 01, 2018 From the Bench

See Something, Write Something

Hon. Stephen Wm. Smith | The author is a former magistrate judge on the U.S. District and Bankruptcy Court for the Southern District of Texas. He wrote this column shortly before he retired on July 31, 2018.

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In a few weeks, I will trade in my commission as U.S. magistrate judge for a voyage into the retirement sunset. Before hoisting sail with a parting glass, I offer these reflections to my worthy successors in these chambers.

You will soon learn, as I did, that federal magistrate judges (formerly known as “commissioners”) have always played an unsung role in our nation’s judicial system. Despite occupying what is sometimes termed the “lower level” of the judicial totem pole, magistrate judges are essential to the rule of law in our democracy. When it comes to the Fourth Amendment—especially electronic search, seizure, and surveillance warrants—nobody is more important than you are. You sit where the 18th-century rubber meets the 21st-century cloud—a suitably befuddled metaphor for the befuddling challenges you will face in an era when the reach of digital technology continually exceeds the grasp of law.

Criminals increasingly make good use of computers, cell phones, and other digital devices to accomplish their purposes. But so does everybody else, including my two-year-old granddaughter on her tablet screen. Who is it that, on a daily basis, maintains that fine balance between legitimate and illegitimate law enforcement intrusion into our digital lives? Magistrate judges, like you.

Given that vital responsibility, you will be disconcerted to learn how few of your fellow citizens have a clue about what you do—not just the general public but also friends, family, and even fellow lawyers. The reason why is no great mystery to anyone familiar with our docketing system. Unlike federal civil and criminal dockets to which public electronic access is the norm, the work of magistrate judges is largely hidden in sealed manila envelopes buried within courthouse vaults.

Secret Dockets

The magistrate judge (MJ) docket consists largely of search, seizure, and electronic surveillance orders issued at the request of law enforcement. It is by far the biggest secret docket in the country—larger even than the docket of the Foreign Intelligence Surveillance Act (FISA) court. Although actual figures are unknown (because nobody is keeping tabs), a reasonable estimate is that over 50,000 new cases are added to this secret docket annually. Most of the orders in these cases are issued under a 32-year-old statute known as the Electronic Communications Privacy Act. These orders are typically sealed initially to avoid alerting the target or otherwise jeopardizing the investigation. The problem is the duration of the sealing period. Orders are often sealed “until further order of the court”—but that further order rarely arrives, primarily because the judge never has occasion to revisit them. Indefinite sealing is tantamount to permanent sealing.

Adding to the secrecy are nondisclosure orders, preventing service providers like Verizon and Google from telling customers that their cell phone or email accounts have been accessed by law enforcement. Often informally referred to as gag orders, their correct technical name under the First Amendment is “prior restraint of speech.”

Secret dockets are problematic for a number of reasons. Their legality is debatable, given the presumption of public access to courts under both common-law and First Amendment principles. What is not debatable is that secret dockets upend the regular process of judicial review and accountability in our democratic system of government.

Ordinarily, lower courts are the first to encounter and decide novel questions of law. Affected parties appeal these rulings to courts of appeals, which issue written opinions after considering arguments from both sides. For particularly important cases, the Supreme Court weighs in to finally resolve the issue. If Congress dislikes the result, it can pass new legislation more in line with the will of the people, and the whole process begins anew.

Secret dockets turn this process upside down. Gag orders prevent affected parties from learning about the government intrusion, so they can’t appeal. Appellate courts cannot decide appeals never filed, and so the Supreme Court has no opportunity to shed light on the legal limits for new surveillance technology. Without that light, Congress is left in the dark, and so are the people.

For magistrate judges, the result is an accountability void. Without authoritative guidance, each magistrate judge effectively becomes a law unto himself or herself. Any district court in a large city will have several magistrate judges (Houston has five) who rotate the criminal duty on a weekly or monthly schedule known in advance. In such circumstances, law enforcement can shop for the judge with the friendliest ear, which means that any limit on executive power is largely self-imposed. Not exactly the Madisonian vision of constitutional checks and balances.

Of course, one magistrate judge alone cannot magically flip the switch to transparency and accountability. The problem is systemic—the lack of uniform standards for MJ docket management among the 94 district courts nationwide. A comprehensive solution for the MJ secret docket is well above your pay grade, at the level of the Judicial Conference or perhaps even Congress itself.

Swimming Against the Tide

While a single judge may not be able to stem the secrecy tide, there are some ways to swim against it. You can set time limits for sealing and nondisclosure orders. You can publicly docket a “warrant cover sheet” for every order. Like the civil cover sheets used to manage the civil docket, this cover sheet would provide generic information about the warrant, such as the type of authority sought (cell phone search, pen register, tracking device, etc.), the type of crime under investigation, and the requesting law enforcement agency. Data from the cover sheets could then be aggregated in statistical reports for use by court administrators, law enforcement, Congress, and other interested parties.

Most important of all, you can publish written opinions. Over the past 15 years, magistrate judges have issued many influential opinions shedding light on new law enforcement investigative techniques. The following is just a partial list.

Cell phone location tracking. Magistrate judges were the first to flag this issue back in 2005, and the first two appellate court decisions on the question were government appeals from adverse magistrate judge rulings. This summer the Supreme Court finally decided that the warrantless seizure of cell phone location records is not permissible under the Fourth Amendment. The case, Carpenter v. United States, has been described as the most important digital privacy case of the 21st century.

Warrantless access to emails stored abroad. A second blockbuster case on the Supreme Court’s plate this past term was also generated by a magistrate judge ruling, United States v. Microsoft. At issue was the proper legal standard for U.S. law enforcement to obtain emails within the control of a U.S. provider but stored abroad. The case posed vexing questions about the “territoriality” of data stored in the cloud, with significant implications for U.S. foreign relations and transnational law enforcement.

Hacking warrants. Law enforcement now has the capacity to gain remote access to a targeted computer, surreptitiously downloading files and even activating its built-in camera. The first reported opinion assessing this technique under the Fourth Amendment and existing Rule 41 was issued by yours truly in 2013. Shortly thereafter, the Department of Justice proposed and the Supreme Court adopted an amendment to Rule 41 clarifying the appropriate venue for such warrant applications.

Cell site simulators. Another increasingly common investigative technique involves a device called a cell site simulator, sometimes referred to as a “Stingray,” which enables law enforcement to locate a cell phone by posing as a cell tower. One of the first decisions explaining this technique and considering its Fourth Amendment implications was written by a magistrate judge.

Encrypted cell phones. The modern smartphone contains a treasure trove of information about the personal life and (in some cases) criminal activity of the user. When may the cell phone maker be compelled to assist law enforcement to gain access to the device by circumventing the encryption used to prevent unauthorized access? The first comprehensive decision to address this important issue was written by a federal magistrate judge sitting in Brooklyn.

Post-cut-through digits. Unlike phone numbers dialed to set up a call, digits such as PIN codes or Social Security numbers used to gain access to our credit card or bank accounts are communications content protected by the Fourth Amendment. The first opinions on this issue were written by magistrate judges. In fact, one such opinion prompted the FISA court to direct the Department of Justice to justify its practice of incidentally collecting such communication content under pen register orders.

This worthy heritage will soon be in your hands. Maintaining it will take some effort; excuses not to write are easy to find. As a newly minted judicial officer, you will lack confidence in your own judgment; overwhelmed by heavy and unfamiliar responsibilities, you will feel pressed for time; after a few years, the unfamiliar becomes the routine, and you will be lulled by inertia. Please do not succumb to these siren calls for inaction, tempting as they may be. You are in a privileged position to see things that your fellow citizens cannot.

Keeping up with new surveillance technology will always be a daunting task. But as my friend and colleague from Brooklyn, Magistrate Judge James Orenstein, has written, to do otherwise would be to abdicate our responsibility as judges: “Even in the age of the self-driving car, courts must keep someone at the wheel, because the people who wrote our outdated statutes couldn’t see the dangers approaching on the road we’re now traveling down so very quickly.” James Orenstein, Judicial Engagement with Surveillance Technology, 49 Conn. L. Rev. 1717, 1731 (2017).

Airports and train stations these days often display signs with a four-word catchphrase exhorting the public to report unusual activity to law enforcement. In keeping with your constitutional role as a neutral and detached magistrate judge, I urge you to adopt a similar maxim to report unusual activity of law enforcement: “See something, write something.” 

Hon. Stephen Wm. Smith

The author is a former magistrate judge on the U.S. District and Bankruptcy Court for the Southern District of Texas. He wrote this column shortly before he retired on July 31, 2018.