Legal Review: District Judge Discloses Federal Agencies’ Applications for Civilian Communications Records

Amato Sanita is a criminal attorney who covers cases ranging from embezzlement to domestic violence, and practices in both state and federal courts in Pennsylvania.

U.S. District Chief Judge Beryl A. Howell unsealed selected applications of federal law enforcement agencies to access individuals’ phone and internet records in Washington D.C. This is part of an effort instigated by journalists and watchdog groups to increase government transparency about their surveillance of private civilian communications records.

In total, Howell released select information from 235 solicitations from federal agencies that were conducting investigations in 2012 for cases that are now closed. Each application would give the federal agent conducting the investigation a record of the time, date, length and mode of communication between the person in question and their contacts.

As of 1986, a statute has been in place that allows law enforcement to solicit these communication records from phone and internet service providers. Court filings state that there has never been a policy mandating that these records be kept secret and sealed from public access. However, Chief Judge Howell’s release of these solicitations marks the first time this type of government surveillance information has been officially disclosed.

The release of these sealed files came about after a Vice News journalist, Jason Leopold, requested access to the federal applications for private phone and internet activity logs from communication service companies back in 2013. With support of the Reporters Committee for the Freedom of the Press, Leopold has succeeded in bringing about the disclosure of these applications by the U.S. District Chief Judge.

The federal agency applications were released online with the case number, the date, the judge who reviewed the solicitation, and the mode of communication (phone or internet), but they do not reveal which federal agency requested the records nor any identifying information about those involved in the case.

Law professionals suggest this could–and should–become the standard in the future so that the U.S. judicial branch end its part in supporting the longstanding culture of undisclosed surveillance by government law enforcement.

Additionally, many believe that the federal agencies have taken advantage of the 1986 statute to skirt the law and increase their surveillance without needing to get search warrants to access these private communications logs.

Rather than have to go through the full procedure of a search warrant that requires the applicant to demonstrate with proof why they suspect criminal activity, federal law enforcement agencies must simply tell the court how the communication information they apply for is relevant to their investigation.

These law enforcement agencies have also implemented their own towers that send out signals to collect communications information in the same way cell phone companies operate to offer customers service. This activity has been questioned in courts over the past couple of years as the applications for communications information between 2012 and 2013 increased by 400 percent.

As technology advances and the means of communication, especially electronic communication, has vastly expanded, it has also amplified the amount of material the law enforcement agencies can access, including social media sites like Facebook and Twitter.

Attorney Amato Sanita commented, “The release of these applications records is a major step towards increasing government transparency and protecting the rights of civilians to privacy and freedom of speech, which are being threatened by the pervasive and secretive government surveillance that has been happening behind closed doors.”

 Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.