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.


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  • icon
    MyNameHere (profile), 1 Dec 2017 @ 2:23am

    I always end up in the same place with these sorts of lawsuits, which is "do they have standing?"

    They are not directly subject of the surveillance.

    They are trying to push the public's right to know, but the courts have long held that this "right" as it were has it's limitations.

    So just not seeing where they expect this one to go.

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

    • icon
      Ninja (profile), 1 Dec 2017 @ 4:02am

      Re:

      Thankfully there are those who sue to get things overturned. Sure it may be lawful but it can still be unconstitutional and yes people have all the right to challenge anything the Govt does that may go against their best interests.

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

    • identicon
      Anonymous Coward, 1 Dec 2017 @ 8:29am

      Re:

      Does the government have standing when they steal your private information without a warrant?

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

    • icon
      Stephen T. Stone (profile), 1 Dec 2017 @ 10:53am

      Re:

      They are trying to push the public's right to know, but the courts have long held that this "right" as it were has it's limitations.

      Unless that “right to know” coincides with an ongoing investigation, runs up against a legitimate matter of national security, or would otherwise endanger lives both here and abroad, the general public has a right to know what law enforcement agencies are doing with both their time and the public money that keeps those agencies running.

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

      • icon
        MyNameHere (profile), 1 Dec 2017 @ 7:55pm

        Re: Re:

        I would suspect that most (if not all) of the cases are still pending, and thus would fall into ongoing investigations, or would touch national security. Most investigations and court cases can go for years and years, so unless they are looking at stuff from, say, 2005 or so, they are likely to bump up against active cases, active prosecutions, active investigations, or cases that are actively in appeals.

        They would likely have to find a specific case that is none of the above and try that. They would likely have more success. Just wide net fishing doesn't seem to lend itself to the courts suddenly exposing everything.

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


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