OPINION:
In 2023, the FBI secretly recorded a phone call between Trump campaign manager Susie Wiles and her attorney.
Ms. Wiles had no idea it was happening. She had no opportunity to challenge it. Thanks to a court-ordered nondisclosure order, neither her phone carrier nor anyone else was permitted to tell her. That is Operation Arctic Frost in a nutshell: raw, unaccountable government surveillance, conducted in secret against Americans who had committed no crime.
It wasn’t just Ms. Wiles. Newly released documents confirm that special counsel Jack Smith’s team assembled what prosecutors themselves called a “wish list” of 14 sitting members of Congress whose phone records they wanted to seize.
Several of those senators were sitting in the very hearing room investigating Arctic Frost when Senate Judiciary Chairman Charles E. Grassley, Iowa Republican, read their names aloud.
Mr. Smith’s team also subpoenaed records from more than 400 Republican individuals and organizations, issuing at least 197 grand jury subpoenas in total, all shielded from public view by nondisclosure orders that kept every target in the dark.
This wasn’t a targeted investigation. It was a dragnet. Thanks to nondisclosure orders, every single one of those targets was legally forbidden from being told it was happening.
Judges signed off. Carriers complied. The targets went on with their lives, unaware they were being exposed.
This is the surveillance state that so many in Washington have spent years insisting doesn’t exist.
The Senate Judiciary subcommittee’s hearing, aptly subtitled “A Modern Watergate,” was a necessary step. Yet anyone who has watched Washington long enough knows how this movie ends if legislation doesn’t follow: The hearings will fade, the news cycle will move on, and the next administration will inherit every tool that Mr. Smith used with the added benefit of knowing exactly how far they can push before anyone notices.
That is the central lesson of Arctic Frost. The problem was never just Jack Smith. The problem is the legal architecture that made Arctic Frost possible and remains fully intact today, ready for the next willing prosecutor.
That is precisely why nondisclosure order reform matters so much and why it should be a top priority for Congress.
Congress is considering legislation that would require data companies to notify their customers when the government subpoenas their phone or electronic records. It would have an exception. If a judge makes a specific, written finding that notification would compromise an active investigation or endanger someone, then secrecy remains available. Yet secrecy would become the exception, not the rule.
That is not a radical idea. It’s a matter of basic constitutional fairness. Consider what happens when the government decides to search your home. Agents must obtain a warrant, appear at your door and hand you a copy of the legal authority under which they are acting. You know it happened; you can call a lawyer. The legal process is visible to you from the moment it begins.
When those same investigators want three years of your phone records? They can go straight to your carrier, hand over a subpoena and prohibit that company from ever breathing a word to you. No knock at the door, no paper in your hand. You may go years, or even a lifetime, without knowing that your private communications data was seized.
That asymmetry has no principled justification, and it is precisely what allowed Arctic Frost to operate in total secrecy.
Reform simply closes that gap. It doesn’t eliminate nondisclosure orders, nor does it hamstring legitimate investigations. It requires that secrecy be justified rather than assumed.
Arctic Frost targeted prominent figures by name: sitting senators, the president’s own chief of staff and hundreds of private citizens whose only offense was supporting the wrong candidate. Yet the truth is that no one is safe. The same surveillance tactics used against them can be turned on any of us. That is why this fight transcends party lines.
What we need now is a legal fix that outlasts any single administration. We have the public’s attention and a bipartisan coalition in Congress that can act. The only question is whether they will.
• Jeremy C. Hunt is a Georgia-based lawyer.
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