46 Pages Posted: 23 Feb 2012

Date Written: 2007

Abstract

This article examines a troubling pattern in the application of federal law enforcement surveillance statutes -- namely, those portions of the Electronic Communications Privacy Act of 1986 (the "ECPA") sometimes known as the Pen Register Statute ("PRS") and the Stored Communications Act ("SCA") -- whereby federal prosecutors secretly and routinely obtain court authorization for surveillance that Congress did not intend and which may violate the Fourth Amendment.

Three case studies -- one concerning warrantless wiretapping of digits dialed after a phone call has been completed (Post-Cut-Through Dialed Digits or "PCTDDs"), another concerning warrantless cell phone location tracking, and a third concerning warrantless surveillance of internet traffic data -- demonstrate how the United States Department of Justice ("DOJ") regularly applies for and receives secret surveillance authority from magistrate judges across the country, based on often-implicit legal arguments that are dubious at best and deceptive at worst. These case studies of legally questionable yet routine surveillance demonstrate how the government is steadily increasing its surveillance authority beyond the bounds of the law, shielded by the secrecy of the ex parte surveillance application process.

These case studies raise several questions: How many thousands of illegal and unconstitutional surveillances have been authorized in this manner? What other types of unlawful surveillance are federal prosecutors asking for and obtaining the permission to conduct? And, as one newly vigilant and obviously frustrated magistrate has asked, "How long has this been going on?"

Only the DOJ knows.