CIS Progress in Unsealing Surveillance Records

In September 2016, we filed a Petition in the Northern District of California (the federal district court for the Bay Area and much of Northern California) asking the court to unseal years’ worth of surveillance matters filed there. We had our first hearing before the court on May 4. Our judge plans to investigate how to unseal the matters we seek, and so the hearing was a promising first step in the process of gaining greater transparency for the public.

The public needs to know what kinds of surveillance the government asks courts to authorize, and what legal arguments it relies upon when making those requests. That’s particularly true where the government seeks to use novel forms of surveillance or to compel assistance from third parties, in order to get access to private data that otherwise wouldn’t be intelligible to investigators because it’s encrypted or obscured.

The public has the right to access courts’ proceedings and records under both the First Amendment to the Constitution and the common law. Yet across the country, surveillance matters typically remain under seal indefinitely, long after the underlying investigations have ended and the need for secrecy is over. That’s why we filed this case: to learn more about how law enforcement has been using our local federal court to carry out electronic surveillance and potentially compel assistance from tech companies, many of whom are headquartered here in the Bay Area.

As a first step to getting access to those surveillance records, we filed a motion in January asking the court to start by unsealing the docket sheets for its “criminal miscellaneous” matters (the case category to which the court assigns surveillance matters) for the period of 2006 through 2011. Docket sheets provide an index to a court’s case filings and proceedings: they show at a glance what the case is about and what’s happened in it. We chose this time period on the rationale that docket sheets should almost always be safe to unseal after five or ten years have passed—and yet 95% of them are still sealed to this day. If we can review those docket sheets, we can identify which cases involve the surveillance matters we’re interested in unsealing.

At the hearing, Judge Westmore recognized that the public has a qualified right of access to the materials we’re seeking. That right is one that it’s important for the court to vindicate, even though it may require some work to do so. We were responsive to the court’s concerns, agreeing that private information can be redacted from the docket sheets, and any ongoing investigations’ records need not be unsealed at this time. We informed the court that we’re willing to work with the court and the government to reduce the burden of reviewing matters to be unsealed. (The Department of Justice, while not a party, has an interest in protecting private or sensitive information contained in the sealed surveillance matters that federal investigators have filed over the years.)

As an example, we pointed to a case similar to ours in the federal district court for D.C., the Leopold case, which has already resulted in the disclosure of information about numerous surveillance matters filed in that court. As Judge Westmore noted, that case provides an example that can help us avoid “reinventing the wheel” in our own case. The Leopold case shows that it’s possible for the public to get access to information to which it’s entitled, without jeopardizing private or confidential information, and while respecting the time and resources of the court and the government.

Judge Westmore stated that she will bring the parties back to court after conferring with the Clerk of Court (who manages the court’s records) and the Chief Judge. We look forward to collaborating with the court, the Clerk, and the government to make forward progress in this important case.

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