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Court Nixes Unlimited 'Gag' Orders in Electronic Surveillance Case

A federal court in Houston has for the first time set a 180-day expiration period on the sealing and nondisclosure of electronic surveillance orders issued in criminal cases. In re Sealing & Nondisclosure of Pen/Trap/2703(d) Orders, Nos. H-218M and H-08-219M, 2008 WL 2315862 (S.D. Tex., Houston Div. May 30, 2008).

According to the order, courts in the U.S. District Court for the Southern District of Texas customarily have granted government requests that customer information concerning phones targeted for investigation be "sealed and not disclosed by a service provider to the user or subscriber 'until further notice of the court.'"

The court noted that from 1995 to 2007, 99.7 percent of the orders sealed in the Southern District of Texas "until further order of the court" remained under seal in 2008.

"Indefinitely sealed has come to mean permanently sealed," the court said.

In addition to having the accumulated orders create a "kudzu of sealed manila envelopes" in the clerk's office, the failure to put an end date on such arrangements violates the First Amendment's prohibition on prior restraint of speech and the right of public access to judicial records, the court explained.

The opinion evaluates two statutes that allow law enforcement to compel phone companies and Internet service providers to permit real-time monitoring of customer phone and Internet usage and to turn over customer records, cell site locations, stored e-mails and other account information.

The pen/trap law and the Stored Communications Act are parts of the Electronic Communications Privacy Act. Both laws require a court order authorizing electronic surveillance during a criminal investigation.

In the case at bar the government sought a pen register and trap/trace device on two cell phones allegedly used by a drug trafficking suspect.

A pen register is a device that allows law enforcement to monitor activity on a phone.

U.S. Magistrate Judge Stephen Smith rejected the government's request for an indefinite seal and nondisclosure order because it wanted to seal the electronic surveillance orders "beyond the life of the underlying investigation."

"An indefinite nondisclosure order is tantamount to a permanent injunction of prior restraint" on speech and access to public records, the judge said.

He concluded that the government's interests in this case, that is, the integrity of an ongoing criminal investigation, the "reputational interests" of the investigation's targets and the sensitivity of investigative techniques, were "not sufficiently compelling" to justify a permanent gag order.

Judge Smith said common law provides a right of public access to electronic surveillance orders at the post-investigation stage and that revealing the information in electronic surveillance orders would not threaten the integrity of a criminal investigation that is no longer active.

However, sealing such orders may be allowed in cases where no less restrictive means, such as redaction, are available, according to the judge.

"Legitimate confidentiality interests will almost always be fully accommodated by redacting the troublesome words or passages," Judge Smith said.

Here, the government will have an opportunity at the end of the 180-day period to move for an extension of the order based on a certification that the investigation is still active or a showing of "exceptional circumstances," e.g., danger to a person's life or safety, he said.

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A federal court in Houston has for the first time set a 180-day expiration period on the sealing and nondisclosure of electronic surveillance orders issued in criminal cases. In re Sealing & Nondisclosure of Pen/Trap/2703(d) Orders, Nos. H-218M and H-08-219M, 2008 WL 2315862 (S.D. Tex., Houston Div. May 30, 2008).