As I mentioned in my previous blog post, 2019 is shaping up to be a big year for increased transparency in our nation's courts. At CIS, we've had a whirlwind month of activity in several different cases:
- My colleague Jennifer Granick (now at the ACLU) and I filed our objections to the unfavorable report and recommendation issued in December in our petition to unseal sealed surveillance records in the Northern District of California. The case is now in front of the chief judge of the district, to whom we explained in our objections that the public has constitutional and common-law rights to access these materials and that there is no basis for deeming those rights overcome by the administrative burden of effectuating them;
- I joined the Electronic Frontier Foundation in an amicus brief in the D.C. Circuit in the appeal from the disposition of a similar petition filed by journalist Jason Leopold and the Reporters Committee for Freedom of the Press, in which we explained that the public needs access to surveillance records because of our dual roles as both citizens and users of electronic communications services;
- My colleague Stephen Wm. Smith, Director, Fourth Amendment and Open Courts, joined an amicus brief of former magistrate judges in the Leopold appeal, describing their experiences managing the records in surveillance matters and dispelling the district court's mistaken assumption of how much work is entailed in providing public access to those materials;
- And finally, Judge Smith joined another amicus brief in the D.C. Circuit, filed the very same day as the Leopold briefs, in a separate case that challenges the fees that the federal courts charge members of the public for electronic access to court records. The brief explains that access fees not only impede the judiciary's public transparency (with particular impact on pro se litigants), undermining the courts' legitimacy in the eyes of the public, they also affect the judiciary's ability to identify and rectify problems in its own functioning.
I'm proud of the work that Judge Smith and I did this month, and I hope that our contributions will be persuasive in convincing the Northern District of California and the D.C. Circuit that making it easier for the public to access court documents is in the interests of the press, the general public, the judiciary itself, and indeed of democracy overall.
There's a lot on the line in these cases, but I remain confident that reforms are in the works. As proof, I need look no further than the EFF's recent victory in an unsealing case in Seattle, where the EFF represented Seattle's local alt-weekly in an unsealing petition similar to mine and the one in Leopold. Thanks to that case, the Western District of Washington has adopted several changes that will make its surveillance docket more transparent going forward. Such a positive change is a great way to start the year, and I hope it's just the first of many.