I'd like to draw attention to what I believe is a fantastic piece about the evolution of the Electronic Communications Privacy Act of 1986 (ECPA) - what it was intended for, how it is currently being used, and in what ways it could be improved. Here is the article: Stephen W. Smith, Gagged, Sealed & Delivered: Reforming ECPA's Secret Docket; it is currently on SSRN, but is forthcoming in the Harvard Law & Policy Review Vol. 6. It is written by a United States Magistrate Judge who has observed first hand the "secrecy" in action. The abstract alone was sufficient to enthrall me:
Every year federal magistrate judges issue tens of thousands of orders (the exact number is not known) allowing law enforcement access to the electronic lives of our citizens -- who we call, where we go, when we text, what websites we visit, what emails we send. These electronic surveillance orders are authorized by the 1986 Electronic Communications Privacy Act, and are concealed from public view by a legal regime of secrecy which includes sealed court files, gag orders, and delayed-notice provisions. In effect these orders are written in invisible ink -- legible to the phone companies and electronic service providers who execute them, yet imperceptible to targeted individuals, the general public, and even other arms of government, including Congress and appellate courts. Such secrecy has many unhealthy consequences: citizens cannot be well informed about the extent of government intrusion into their electronic lives; Congress lacks accurate empirical data to monitor the effectiveness of the existing statutory scheme and adapt it to new technologies; and appellate courts are unable to give effective guidance to magistrate judges on how to interpret ECPA's complex provisions in light of changing technology. The result is a statutory scheme bereft of the normal process of refinement and correction by appellate or legislative review. With Congress on the sidelines, appellate courts not engaged, and the public in the dark, the balance between surveillance and privacy has shifted dramatically towards law enforcement, almost by default. While it is certainly time to update the substantive provisions of ECPA, it is equally important to make structural changes in the law to eliminate unnecessary secrecy. Such reforms should include the elimination of automatic gagging and sealing orders, as well as the adoption of a publicly available warrant cover sheet to capture basic information about every electronic surveillance order.
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