Judge Orders Release Of Information On Cases Involving Electronic Surveillance

from the clubbing-seals dept

In a victory that's only sure to add more entities to the list of government agencies wishing Jason Leopold was dead, a federal judge has decided to roll back some of the opacity surrounding electronic surveillance.

US District Court Judge Beryl Howell said at a hearing Friday morning that absent an objection by government attorneys, the court would post to its website next week a list of all case numbers from 2012 in which federal prosecutors in Washington, DC applied for an order to install a pen register or a trap and trace device.

This is a response to a petition by Leopold and Vice to unseal court dockets containing electronic surveillance affidavits, orders, etc. The step forward towards more transparency is welcome news, but it appears the wheels of justice aren't grinding any faster. This petition was submitted to the court in 2013.

Default mode for nearly any case involving law enforcement surveillance is pitch-black darkness. The government asks for cases to be sealed with alarming (and annoying) frequency, often claiming the potential exposure of law enforcement means and methods would be detrimental to the business of catching criminals. This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.

And yet, these requests are granted more often than not. Howell's district (Washington DC) presides over an extremely high percentage of sealed cases.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

That may be changing. In addition to cutting loose a list of 2012 case numbers, Howell is looking to prevent the government from relying on the DC district to rubberstamp its secrecy requests.

At Friday's hearing, Howell approved a plan that would lay the groundwork for the systematic review and unsealing of a large volume of federal court documents related to the government's use of electronic surveillance.

This is a process that should have been put into place years ago. And, if implemented, should be spread to all federal court districts. The government asks for dockets to be sealed because it doesn't want to tip off those who are being surveilled. Fair enough, but that doesn't explain why dockets remained sealed for months or years after investigations have been closed.

Howell is asking for a response from government officials, so there's a chance it will still be months or years before the list of 2012 sealed cases is released. But if the review process changes (i.e., there actually is one), then indefinite docket sealing will no longer be the presumption.

Filed Under: beryl howell, electronic surveillance, foia, jason leopold, surveillance, transparency


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    art guerrilla (profile), 22 Sep 2016 @ 5:09pm

    a late-breaking update...

    ...Judge Beryl Howell was found dead today, in a place the judge was never known to frequent, their vehicle was still running, but the keys were thrown down the hill; investigators say the judge was apparently the victim of a robbery, though no articles or money were stolen. authorities said there was nothing at all suspicious about it, and, um, nobody needs to look into it or anything.
    turning to the weather, Ginny, are we wearing galoshes or sandals tomorrow ? yuk-yuk-yuk...

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 22 Sep 2016 @ 5:16pm

    Right for the wrong reasons

    ...would be detrimental to the business of catching criminals. This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.

    Consider how averse to revealing the use of devices like Stingray's police and government officials are, even to the point of dropping cases rather than revealing their use, and the claim might be more true that it would first appear to be.

    If they're using techniques, devices and/or methods that wouldn't stand up under legal scrutiny or challenge then forcing them to reveal those things would indeed 'be detrimental to the business of catching criminals' by drastically cutting down on how much evidence they can collect and use in court, as it would force them to do a better job of evidence laundering if they wanted to use what they currently do. No evidence equals no convictions (ideally), and when all you care about is convictions that's a problem.

    If something is under seal then it impossible to know exactly what's being done, and without knowing the details it's impossible to challenge, allowing them to do things that they would otherwise be prohibited from. As such it's very much in their interests to keep things as secret, and therefore immune to challenge as possible.

    reply to this | link to this | view in chronology ]

    • icon
      MadAsASnake (profile), 23 Sep 2016 @ 2:54am

      Re: Right for the wrong reasons

      Depends what your target is:
      - if it is justice, then it is not detrimental
      - if it is maximising "guilty" pleas and verdicts then it is detrimental
      Now, the court system is meant to be the former, not the latter.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 23 Sep 2016 @ 12:56pm

        Re: Re: Right for the wrong reasons

        Now, the court system is meant to be the former, not the latter.

        Meant to be, but hasn't been for many a year/decade. After all if you weren't guilty of something then you wouldn't be under investigation/in court, and someone being found not guilty doesn't make for a good PR soundbite.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2016 @ 6:34pm

    They want to hide the use of stingrays because they often use them in violation of the Bill of Rights.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Sep 2016 @ 6:38am

      Re:

      They keep blowing legit cases in the process.
      If they have the case, then get a warrant. Apparently, in many cases they do fishing expedition.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 22 Sep 2016 @ 10:33pm

    This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.


    What they don't want exposed is that whole alarming frequency thing, along with the alarmingly flimsy orders.

    But this only seems to pertain to cases involving such orders in the first place, which hardly seems to cover uses exposed after the fact, or unexposed uses, uses of things they claim they need no paper for, and anything not falling under one of those types of orders.

    reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 23 Sep 2016 @ 5:17am

    Move along, no crime prevention here folks.....

    This is one of those cases where they don't want prevention, they want convictions. It is curious how there is so much talk about preventing crime, but here, where if everyone "knew" (which they have for decades), how easy it is to listen in on every electronic communication, then it would prevent crimes from happening. But no, they want convictions, not prevention, so let's just keep hiding the "means and methods" because if criminals know this, they might not commit crimes. Wow, their illogic is making my head hurt.

    reply to this | link to this | view in chronology ]

    • identicon
      other, 23 Sep 2016 @ 9:34am

      Re: Move along, no crime prevention here folks.....

      I was going to say the same thing.

      The reason that most people don't commit crimes is that they're not criminals.
      The reason the rest of the people who don't commit crimes don't commit crimes is that they expect that they'll be caught.

      I would think that increasing that number, by converting future criminals into future-don't-want-to-get-caught-to-don't-do-it citizens would be a good idea.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Sep 2016 @ 10:34am

    ITAR

    Harris may have marked their documents with ITAR restrictions, but now that at least two of them have been released to the public, well....

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.