In September 2016, my colleague Jennifer Granick (now at the ACLU) and I filed a petition in the federal district court for the Northern District of California that sought to unseal years' worth of sealed surveillance matters filed in that court. It is well-established that the public and the press have First Amendment and common-law rights to access court records. However, surveillance matters filed in the federal courts often remain under seal indefinitely, long past any need for secrecy - a topic another colleague of mine, retired magistrate judge Stephen Wm. Smith, has written extensively about. Through the petition, Jennifer and I are aiming to inform the public about how the government uses legal authorities to get court authorization for electronic surveillance, particularly novel forms of surveillance such as compelling companies to assist investigators in decrypting or otherwise accessing private data.
This week, more than two years after the case began, the court dealt a setback to our efforts. The magistrate judge assigned to the matter issued a report that recommends denying our petition. She concluded that the public has no First Amendment right to access the surveillance materials we sought to unseal, and while she correctly recognized the public's presumptive common-law right to access those materials, she found that the right was overcome by the "significant administrative burdens" which unsealing and redaction would require of the court clerk and the government. Finally, the judge denied our request that the court make changes to its docketing and unsealing practices going forward: while some changes to enhance court transparency might indeed be called for, she said, our petition is not the right way to go about it.
I'm disappointed in the judge's report, but hopeful that we can still help the court to become more transparent. The magistrate judge reassigned the case to the chief judge of the district, so our next step will be to persuade the chief judge not to adopt the magistrate judge's recommendations and instead to uphold the public's First Amendment and common-law rights. The public's rights to access the records of a public institution should not be denied just because honoring those rights takes work.
I think 2019 is going to be a big year for court transparency - not only here in the Northern District of California, but in federal courts around the country. Transparency reform is coming. Getting to play a part in helping that happen is the best gift I could ask for during this holiday season.