Appeals Court: Government Can't Keep Warrants Under Seal Just Because The Unsealing Process Is Difficult

from the 'hard-work-is-hard'-is-not-an-acceptable-excuse dept

The US government's law enforcement agencies really enjoy their unearned secrecy. They file warrants and subpoenas under seal, rendering entire dockets useless, if not completely invisible. And they maintain this secrecy for years, long after the underlying investigations have been closed.

Some of the documents the government loves to file under seal include SCA [Stored Communications Act] warrants and pen register/trap-and-trace [PRTT] orders. Since 2013, Jason Leopold has been fighting the government's opacity. In 2016, he was joined by the Reporters Committee for Freedom of the Press in his attempt to get this blanket secrecy lifted.

Arguing that courts still bear a presumption of openness and transparency, Leopold challenged the government's sealing of these records. In 2018, Judge Beryl Howell gave Leopold and the RCFP a partial win. It ordered the government to produce a sampling of all the records filed under seal.

This wasn't enough. This only covered about 10% of the government's filings. Leopold and RCFP demanded more. The government responded that it would be too "burdensome" for it to dig into its dozens of sealed dockets/documents to see what could be released without harming long dead investigations or always-apparently-in-peril national security. Unfortunately, Judge Beryl Howell agreed.

The DC Appeals Court has taken a look at the case and says the government needs to get busy handing stuff over. The "tradition of openness" covers these warrants and orders, and claiming compliance is difficult isn't a legitimate excuse for unjustified secrecy. Here's a taster from the opening of the decision [PDF]:

The public’s right of access to judicial records is a fundamental element of the rule of law. Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all. We therefore reverse the judgment and remand the case for further proceedings.

There have been some compromises made over the past several years, but the government has refused to respect the "tradition of openness" US courts operate under. This is where the challenge before the Appeals Court arises: Leopold/RCFP want a new presumption of openness to be in play going forward. The government, however, believes some random SCA/PRTT scraps should be enough to satisfy the public interest.

Regarding past filings, the applicants still sought basic docket information for SCA § 2703(d) matters and specified details to be extracted from 100% of pen register matters filed by the U.S. Attorney’s Office since 2008 -- both involving closed investigations only. The applicants no longer sought any of the actual documents or any retrospective relief whatsoever with respect to SCA warrants. Regarding future filings, they requested real-time access to basic docket information, as well as the presumptive unsealing at the close of investigations of applications (and supporting documents), orders, and docket entries for SCA warrants, SCA § 2703(d) orders, and pen register orders.

This doesn't seem like an onerous request. Unsealing documents at the close of an investigation should be the baseline standard. If parts of a closed investigation implicate ongoing investigations, the government still retains the power to redact info. But hiding everything -- including the docket itself -- isn't the answer.

The government has some legitimate interest in secrecy. But it still has an obligation to the public. The Appeals Court says it must follow through on that obligation, no matter how inconvenient it might be for the government.

It is undisputed, then, that in considering the legitimate interests identified in Hubbard, a court may reasonably find that the administrative burden of protecting those interests should affect the manner or timing of unsealing. As the district court said, the Clerk’s Office cannot simply press “print” and unseal docket information that might jeopardize personal privacy or ongoing investigations. The applicants cannot and do not expect the U.S. Attorney’s and Clerk’s Offices to disclose records without redactions or to drop everything and make unsealing their top priority.

But although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever. The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981). Production may be time-consuming, but time-consuming is not the same thing as impossible.

The presumption of openness will now travel back down to the lower court that blew the decision the first time around. And at some point, the government will actually start having to deliver the records Jason Leopold asked for more than a half-decade ago.

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Filed Under: sca, sealed, secrecy, stored communications act, transparency, warrants


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  1. icon
    Norahc (profile), 13 Jul 2020 @ 4:47pm

    Re: Re: Will they waffle or tap dance?

    Similar to the All Writs Act and breaking encryption, they'll just keep judge shopping till they get the decision they want, at which time they will proclaim it the law of the land never to be challenged again.


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