Cops and federal investigators can easily snoop on your digital life. Through the use of surveillance methods, such as pen registers and trap and trace devices, the police can demand that communication providers like Twitter or Google disclose your location data, your call history, and even your e-mail records. Police often do not need a warrant to use these tools, which means cops have a lower burden of proof required to use them during investigations.
Keeping tabs on how our government uses these secret surveillance tools in Seattle has been essentially impossible, until now.
When former Stranger News Editor Steven Hsieh looked into these tools in 2017 he found that there was no clear method for the public to track how often authorities use these surveillance processes in Seattle. The records were so secret that there was no public docket showing when and how often law enforcement used these processes in their investigations. So The Stranger partnered with the Electronic Frontier Foundation (EFF) and petitioned the federal court, asking for public disclosure of how these tools are used and for the unsealing of past surveillance orders.
Today, we can claim a victory. In response to The Stranger’s petition, the United States Attorney’s Office for Western District of Washington and the Clerk of the Court have launched a new pilot program for tracking these surveillance tools. The court is now collecting data each time one of these surveillance tools is used and will publish that data in semi-annual reports. These reports will include the case numbers and the principle crime being investigated every time the government asks to use one of these surveillance methods, giving the public in Seattle an unprecedented understanding of how investigators spy on Americans.
Thanks to Steven’s groundbreaking work and the amazing legal team behind this case, Seattle’s federal court will now tell the public how authorities are using modern digital surveillance tools. EFF partnered with the law firm Dorsey & Whitney and they pursued this case for free. Go donate to EFF now.
Beginning in 2020, the program’s reports will be published in January and July of each year on the court’s website. These reports will provide important data about law enforcement activity and could also serve as the springboard for researchers, the press, and the public to request the unsealing of individual cases identified in them. In January 2021, after the program has been in use for two years and the Court has published three reports, the court and the U.S. Attorney’s Office will decide if they want to continue or modify the program. We’re looking forward to the first report and hope that that court and U.S. Attorney’s Office will make the pilot program permanent. And we’ll be watching to make sure that the government does not go back on the transparency gains made as a result of our case.
Aaron Mackey, one of EFF’s attorneys that worked on the case, told me that this will bring a new level of transparency to how surveillance works in Seattle’s federal court.
“It will allow The Stranger, as well as the larger public, to learn how often federal law enforcement in Seattle make these types of requests and give everyone a better picture of what's happening,” Mackey said. “It will also make it easier for anyone to ask the federal court to unseal specific requests, as we'll now know the case number.”
The Stranger’s petition had also sought to unseal these records going back to 2011, though the pilot program adopted by the court and U.S. Attorney’s Office does not address those historical records. While it’s unfortunate that we won’t yet be able to see how these tools were used during that time period, we believe this transparency moving forward is a significant step.
Hsieh, who now writes for the Phoenix New Times, told me on Thursday that he was disappointed we wouldn’t be able to see historical records but was happy with the new transparency required moving forward.
"The public deserves to know why and how often federal authorities use the power of warrantless electronic surveillance. I hope the relevant public disclosures become a permanent practice, as they already should have been,” Hsieh said.
EFF partnered with The Stranger because of our history of writing about law enforcement surveillance and government transparency in ways that have changed public policy. In 2013, Brendan Kiley and Matt Fikse-Verkerk’s reported on a then-secret wireless spying network that the Seattle Police Department (SPD) had installed in downtown Seattle. Six days after the story was published the department deactivated the network. In 2016, Ansel Herz uncovered a secret, and illegal, SPD software program that lets them snoop on people’s social media feeds. Our impactful work on transparency is not limited to law enforcement. Most recently, Eli Sanders’s reporting on political ads at Facebook and Google has directly led to the state suing the two tech companies. The companies subsequently pulled out of all political ad sales in our state. Washington is the only place in the country where Google and Facebook took that extraordinary step, although it appears they aren't very good at following their own pledge to refuse political ads.
These disclosures at the federal courthouse will bring a better understanding of a very secretive realm of American law. The federal court’s practice of wholesale sealing already secret investigative techniques, such as wiretap requests, creates a circular problem for understanding how our government is operating. Or how Riana Pfefferkorn, a Stanford University professor put it: “There is a body of secret law that we simply can't see.” Pfefferkorn, also with the help of the EFF, sued in federal court in Central California to unseal a case that involved the federal government trying to force Facebook to secretly hand over Facebook Messenger conversations. Facebook wouldn’t, and according to Pfefferkorn, an expert in surveillance and cybersecurity, couldn’t, so the federal government sued. The request to access those court records remains pending.
The Stranger is not the first media organization to sue for the release of electronic surveillance records. Jason Leopold of Vice News (now at Buzzfeed) sued the federal court in D.C. and forced the court to release thousands of surveillance records from 2012 onwards. Leopold’s lawsuit showed that the government has exponentially increased how often they use these tools, which jumped by over 240 percent from just 2012 to 2013 in that district.
Those numbers are startling, especially given that all of this legal action has taken place out of the public’s eye. Are cops unfairly targeting certain groups with these surveillance methods? Are the courts being too lenient with permitting these orders? The data released in Seattle will hopefully help us better answer these questions.