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I'm Asking a Federal Court to Unseal Its Secret Docket in a Facebook Messenger Wiretapping Case

Today, I joined the American Civil Liberties Union, the ACLU of Northern California, and the Electronic Frontier Foundation in moving to unseal a sealed case in federal district court in the Eastern District of California. I'm moving in my personal capacity as a researcher who's worked on encryption policy and court transparency for the past three years. The case involves an important question that has long been part of my research for the Crypto Policy Project: How is the U.S. government seeking to compel service providers, such as smartphone manufacturers and app makers, to change their encryption offerings or otherwise provide technical assistance to law enforcement, in order to give investigators access to the plaintext of otherwise-encrypted communications and stored data?

In the present case, news reporting indicated that the government had gotten a wiretap order to intercept the phone calls of a criminal suspect as part of a gang investigation. Wiretaps for phone calls are nothing new. But the twist here is that the suspect was using Facebook's Messenger app. Text messages and voice calls transmitted over Messenger are end-to-end encrypted, meaning only the parties to the communication can read or hear them intelligibly; anyone else eavesdropping would only get scrambled gibberish. Because communications are encrypted end-to-end, even Facebook itself can't listen in on Messenger calls or read the plaintext of messages. 

When Facebook did not (because it could not) comply with the wiretap order, the government allegedly took Facebook to court to try to force Facebook to break or circumvent Messenger's encryption so that Facebook could let the government listen in on the suspect's calls. The court supposedly denied the motion.

That's a good result for the security and privacy of Messenger's 1.3 billion users worldwide. End-to-end encryption lets us speak freely to one another, keeping our conversations confidential and allowing us to share sensitive information, organize politically, and voice our innermost thoughts without the chill of suspecting that the police, hackers, or other unauthorized snoops might be listening in. Denying the DOJ's unprecedented demand is a big win for encryption and its many, many innocent users.

The downside is that everything about this case is under seal -- the government's motion, the judge's order, any other filings in the case, even the docket sheet itself that indexes the happenings in the case. That means members of the public cannot see what legal arguments the government made to justify its request, or the judge's rationale for rightly denying that request.

This is too often the case with the surveillance dockets of courts around the country. Search warrants, wiretap orders, and orders authorizing other forms of electronic surveillance, along with the government's applications for those orders, typically stay under seal indefinitely, even after an application is denied or the investigation is over. Without visibility into those matters, the public cannot know how the government or the courts are interpreting the law -- there is a body of secret law that we simply can't see. Nor do we know whether the service providers to whom we entrust the transmission and storage of our communications and vast amounts of personal information are standing up for the privacy and security of us, their users.

That's why I've spent the past two years petitioning the federal court in Northern California to unseal its surveillance docket, and it's why I joined today's motion in Fresno federal court to unseal the docket sheet and the legal reasoning in the Facebook Messenger case. This case concerns a matter of significant public interest, not only in light of the ongoing "going dark" debate over encryption's impact on law enforcement, but also given Messenger's huge user base. The public has a right to know what the law is, and Messenger's users deserve the reassurance that Facebook is not secretly letting the government in on their encrypted conversations. I hope that the court decides to, as the EFF put it, "allow some sunshine into this secret docket."

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