Senate bill would shine light on government surveillance

WASHINGTON D.C. – U.S. Senator Ron Wyden, D-Ore., helped introduce bipartisan legislation to require public reporting and notice of the hundreds of thousands of criminal surveillance orders issued by courts each year, which are typically sealed, indefinitely, keeping government surveillance hidden for years, even when the targets are never charged with any crime.

Americans who are the targets of phone wiretaps or bank record subpoenas must eventually be notified by the government of that surveillance. But there is no similar requirement when people’s emails, location and web browsing records and other digital information is obtained by the government.

In fact, the government frequently obtains gag orders to prevent tech companies, many of which have adopted policies to inform their customers about government surveillance orders, from doing so.

Gag orders prevented the New York Times, CNN and Fox News reporters from learning their communications had been obtained by federal investigators for years.

“When the government obtains someone’s emails or other digital information, users have a right to know,” Wyden said. “Our bill ensures that no investigation will be compromised, but makes sure the government can’t hide surveillance forever by misusing sealing and gag orders to prevent the American people from understanding the enormous scale of government surveillance, as well as ensuring that the targets eventually learn their personal information has been searched.”

The legislation has been endorsed by: Access Now, Americans for Prosperity, Brennan Center for Justice, Center for Democracy & Technology, Color of Change, Demand Progress, DuckDuckGo, Electronic Frontier Foundation, Electronic Privacy Information Center, Fix The Court, Free Law Project, FreedomWorks, Open Technology Institute, Project on Government Oversight, Project for Privacy and Surveillance Accountability, Reporters Committee for Freedom of the Press and Salesforce.

The bill has also been endorsed by the following individuals: Retired Federal Magistrate Judge Stephen Wm. Smith, Retired Federal Magistrate Judge Paul Grewal and Seamus Hughes, member of the Electronic Public Access Public User Group.

The Government Surveillance Transparency Act draws on best practices pioneered by courts across the country, and brings them nationwide. The legislation:

• Requires law enforcement to eventually notify targets about subpoenas and court ordered surveillance of their electronic data, similar to existing rules for wiretaps and bank subpoenas.
• Reforms indefinite “gag” orders to providers. Shifts to non-disclosure orders for court ordered surveillance and subpoenas that last 180 days, which can be renewed if necessary.
• Explicitly permits providers and other interested parties to challenge sealing and gag orders, and require the government to pay the challenger’s costs and legal fees if the government loses.
• Requires that surveillance applications and orders eventually be unsealed and docketed so they are available to the public and press, once it will no longer disrupt an investigation or put individuals at risk of harm. Permits courts to redact sensitive information from these documents.
• Requires courts to publish online basic data about every surveillance order they authorize. This will not reveal the target’s name or other information that could disrupt an active investigation.
• Requires that law enforcement notify courts if they search the wrong person, house or device pursuant to an order issued by the court or if a provider discloses data not authorized by the court.
• Requires the Administrative Office of the Courts to expand the annual wiretap reports to include data on the surveillance of stored communications, interception of metadata, and gag orders.
• Provides grants to State and Tribal courts to implement the requirements of the bill.

A summary of the bill is here. A section-by-section summary is here. The full text is here.

(Press release submitted March 22, 2022 by Oregon Press Secretary Hank Stern.)