Seattle Newspaper Files Petition To Peel Back Layers Of Court-Aided Surveillance Secrecy
from the let-there-be-(sun)light dept
A Seattle newspaper is looking to bring some more transparency to law enforcement surveillance tactics. Working with the EFF, The Stranger is making a First Amendment argument about sealed court dockets. The government loves to seal dockets related to criminal cases, especially if agencies have deployed certain surveillance tech or have issued warrants to compel tech company assistance under the Stored Communications Act. (It also loves to shut tech companies up by appending indefinite gag orders to warrants and subpoenas.)
And courts, for the most part, have been playing along. The DC District is notorious for this, thanks to it being home to many DOJ prosecutions. The Stranger’s petition [PDF] asks the court to reconsider this constant, usually indefinite sealing of dockets, arguing that this secrecy runs contrary to public interest.
Petitioner seeks access to these judicial records to better understand and inform the public about how the government is using current laws to gain access to individuals’ private information, including how often law enforcement officers seek and obtain orders from this Court allowing access to such information.
Going forward, publicly docketing electronic surveillance cases and unsealing the applications, orders, and other judicial records in those cases, after there is no longer any need for secrecy, will similarly further the public’s understanding of the law and the judicial process in electronic surveillance cases, and serve the deep-seated American principle of open access to the courts.
While there is an argument to be made for maintaining secrecy in regards to certain law enforcement tools and techniques, sealing entire dockets isn’t the answer. The government could still keep certain filings under wrap or, better yet, actually have to justify limited redactions to the court before locking anything up.
The good news is courts might be a bit more welcoming of these arguments. Suits filed in other districts have resulted in the unsealing of a number of court dockets and the release of more information about government surveillance use. While it can be justifiable to withhold certain details about surveillance techniques, the public still has a right to access information pertaining to the general use of surveillance tech to gain a better understanding about what their governments are doing in their name and with its money. The Stranger is hoping its filing will kill off a key designation that often results in court docket black holes.
If our petition succeeds, the court will no longer use the grand jury designation for electronic surveillance cases, and information regarding those cases would show up on PACER, the online database for federal court documents. A favorable ruling would also free up more than five years-worth of records on electronic surveillance in Western Washington. At the very least, such records could tell us how often police ask the courts to authorize electronic surveillance in this district.
In terms of Stingray use alone, more than a decade of surreptitious spying has been hidden from the general public. In some cases, it’s been hidden from the courts themselves. With law enforcement agencies moving towards more digital surveillance deployment, the courts have an obligation to push the government towards more transparency since the government is often unwilling to make these concessions itself.