In re Sealing and Non-Disclosure of Pen/Trap

Decision Date30 May 2008
Docket NumberMagistrate No. H-08-219M.,Magistrate No. H-08-218M.
Citation562 F.Supp.2d 876
CourtU.S. District Court — Southern District of Texas

STEPHEN WM. SMITH, United States Magistrate Judge.

Cell phones and e-mail play just as big a role in criminal investigations as they do in everyday life. Two federal statutes1 authorize law enforcement to compel telephone companies and Internet service providers to allow real-time monitoring of customer telephone and Internet usage (non-content), and to, turn over customer phone records, cell site locations, stored emails, and other account information. Both statutes require a court order authorizing these forms of electronic surveillance in the course of a criminal investigation.

This opinion addresses a recurring issue of electronic surveillance law not previously decided in a published case: whether these electronic surveillance court orders may properly be kept secret, by sealing and non-disclosure provisions, for an indefinite period beyond the underlying criminal investigation.

On March 19, 2008, the Government submitted two applications for a pen register and trap/trace device on two cell phones allegedly used by an individual engaged in illegal drug trafficking. Following its usual practice in this district, the Government combined each application with a request for customer information regarding the target phones under SCA § 2703(d). Each application concluded with the Government's standard request that the combined pen/trap/2703(d) orders (and underlying applications) be sealed and not disclosed by the service provider to the user or subscriber "until further order of the court." This court has acceded to such requests in the past, but almost never has occasion to revisit them, as shown below. The result has been a kudzu of sealed manila envelopes overflowing the clerk's office vault.

Upon further deliberation, the court is convinced that setting a fixed expiration date on sealing and non-disclosure of electronic surveillance orders2 is not merely better practice, but required by law: in particular, the First Amendment prohibition against prior restraint of speech and the common law right of public access to judicial records. The considerations underlying this departure from previous practice are explained below.


To appreciate the extent of the problem, it is necessary to understand how this segment of the criminal docket works. Magistrate judges in this district handle a significant volume of pretrial criminal proceedings, including initial appearances, appointment of counsel, arraignments, detention hearings, preliminary hearings, criminal complaints, grand jury returns, and arrest warrants. This criminal docket also includes ex parte investigative matters prior to indictment or complaint, including search warrants, seizure warrants, and electronic surveillance orders. To keep track of these ex parte orders, a supplemental docket system known as the "Green Book" was developed. The Green Book is an oversized, cloth-bound volume containing handwritten entries by the case manager for the duty magistrate judge. A separate Green Book is issued each year. Each entry is docketed under a separate "M" case number, and under that number are typically filed the Government's application, affidavits, and other supporting material, as well as any orders of the court, including extensions and sealing orders. Sealed orders are maintained in sealed manila envelopes marked "Sealed by Order of Court." With the advent of CM/ECF,3 Green Book entries are transferred to the publicly-accessible electronic docket. Sealed cases are designated on CM/ECF only by case number and type of case, e.g., "H-08-218M Pen Register."

Based on publicly available CM/ECF data, court staff conducted a survey of electronic surveillance orders issued by magistrate judges in the Southern District of Texas, Houston Division, for the period 1995-2007. The results, compiled in Table A (attached), reveal that 3877 out of 4234 electronic surveillance orders issued during this period, 91.6%, remain completely sealed. Almost all of these orders provide that they are sealed "until further order of the court." Moreover, the vast majority of the 357 unsealed orders were not sealed initially; only 9 currently accessible orders had been previously sealed. This means that out of 3886 orders sealed "until further order of the court," 99.7% remain under seal today, many years after issuance. These numbers confirm, beyond reasonable doubt, that when it comes to shielding electronic surveillance orders from the public, indefinitely sealed means permanently sealed.

Relevant Statutes

Any evaluation of sealing and non-disclosure orders must begin with the governing statutory scheme.

The Pen/Trap Statute (18 U.S.C. §§ 3121-27). This statute, which authorizes electronic surveillance in the form of pen registers and trap/trace devices, specifically addresses both the sealing and non-disclosure of pen/trap orders. Section 3123(d)(1) of Title 18 directs that pen/trap orders be sealed "until otherwise ordered by the court." No particular showing is required to justify sealing; nor is there any suggested sealing period, although it is fair to presume that sealing should last at least as long as the surveillance authorized by the order itself — 60 days.4 How long a pen/trap order should be sealed, and whether sealing should continue beyond the life of the pen register itself, is left to the sound discretion of the court.

The statute also addresses non-disclosure, sometimes colloquially referred to as a "gag order."5 Section 3123(d)(2) provides that the "the person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached, or applied, or who is obligated by the order to provide assistance to the applicant" shall be directed not to disclose to any other person the existence of the pen/ trap or the investigation "unless or until otherwise ordered by the court." Again, no particular showing by the government is required to justify non-disclosure, and no minimum time period is imposed or even suggested. In fact, the "unless" clause implies that the court may refuse to enjoin disclosure even in the first instance. In the end, the duration of any gag order remains subject to the court's discretion.

Stored Communications Act (18 U.S.C. §§ 2701-12). The SCA is different. Nothing in that statute mentions sealing of orders granting access to telephone and email subscriber information. The SCA does allow for "preclusion of notice" to any other person of the existence of the order, but only if there is reason to believe that notification will result in —

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

18 U.S.C. § 2705(b)(1)-(5).6

Precluding the service provider from giving notice of a § 2703(d) order is certainly a type of gag order, although the prohibited act is "notice" rather than "disclosure." Whether such a notice preclusion order would also prohibit a truthful response to an unsolicited customer inquiry is debatable. In any event, the duration of notice preclusion under § 2705(b) is "for such period as the court deems appropriate," so again, the duration of this limited gag order is at the discretion of the issuing judge.7

1. The First Amendment and Non-Disclosure Orders

The practice of issuing secret electronic surveillance orders without an expiration date raises troubling legal questions too often avoided. The task is complicated by the fact that the sealing and non-disclosure provisions are subject to different legal standards. Even though each provision contributes to the order's concealment from the general public, gag orders implicate somewhat different interests than sealing orders. Judicial gag orders impinge upon freedom of speech and press under the First Amendment, and must pass muster under well-established constitutional case law. On the other hand, sealed judicial orders conflict with the common law tradition of public access to judicial proceedings, and are typically evaluated under more flexible common law rules. This section will focus upon gag orders and the First Amendment.

The constitutionality of an indefinite § 2703(d) non-disclosure order has not been specifically addressed in any published decision. However, the Fifth Circuit has acknowledged in an unpublished opinion that "substantial constitutional questions [are] raised by a nondisclosure order without any limitation as to time." United States v. Apollomedia Corp., No. 99-20849, 2000 WL 34524449, *3 (5th Cir. June 2, 2000).8

At the outset, it is appropriate to acknowledge that First Amendment rights are not absolute and do not automatically override all other constitutional values in case of conflict. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ("We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact."). Government-imposed limitations on freedom of speech are subject to greater or lesser degrees of scrutiny depending upon contextual factors such as the type of speech involved, the severity of the regulation, etc. The most searching form of scrutiny, called "strict scrutiny," is reserved for the protection of speech implicating the core concerns of the First Amendment. Republican Party of Minn. v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

Regulation of speech. The non-disclosure rule at issue here limits speech. The recipient of the...

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