By Riana Pfefferkorn on February 14, 2019 at 4:37 pm
On February 11, a federal court in Fresno denied a motion to unseal that I had filed last November along with the ACLU, the ACLU of Northern California, and the Electronic Frontier Foundation. (My original blog post about the case is here.) According to news reports, last summer the U.S. Department of Justice (DOJ) had gone to court to try to compel Facebook to break the encryption on its end-to-end encrypted Messenger voice calling service. The government wanted to eavesdrop on the voice calls of members of the MS-13 gang who were under investigation, and had reportedly obtained a wiretap order for that purpose. However, due to Messenger’s encryption, Facebook could not comply, prompting the government’s motion.
The court considering the government’s request had reportedly rejected it after Facebook objected. However, all court records in the matter were sealed. That meant the public couldn’t know what exactly the government was trying to force Facebook to do to Messenger, or what legal arguments the DOJ had made for why Facebook could be compelled to break its own security, or what the court’s reasoning had been in disagreeing.
Messenger is hugely popular. 1.3 billion people worldwide rely on Messenger to securely communicate with each other. But that’s a false sense of security if the government (ours or any other) has secretly forced Facebook to break the encryption that keeps those communications safe from prying eyes. If Messenger’s encryption has been weakened at U.S. government behest, users—and the public at large, in the U.S. and globally—deserve to know that.
What’s more, while the federal law authorizing court-ordered wiretaps allows courts to order a provider to give “technical assistance” to law enforcement in carrying out the wiretap, it’s not clear just how far that requirement goes. There hasn’t been enough case law to define its scope. If a court is ruling on the scope of the wiretap statute’s technical-assistance provision, then, again, the public needs to know. Secret law is undemocratic.
To that end, we asked the court to unseal a very limited amount of information about the Facebook Messenger motion to compel. We asked for access to the court’s reasoning in rejecting the request, as well the case’s docket sheet, which indexes the happenings and filings in the case. Courts have consistently recognized that the public has the right to access docket sheets and court opinions. That right has not historically been controversial, for good reason: the sequence of events that happen in a case, and how the court rules, are the most fundamental of judicial records. Without them, Americans’ right to access the courts would mean very little indeed. Even if there’s some information in a docket sheet or court opinion that there are good reasons to keep secret (say, a wiretap target’s private phone number, or the name of a confidential informant), that information can be redacted out while the rest of the document is made public.
That’s why it was a surprise on Monday to get the court’s ruling denying that the public has any right to even the very limited amount of information we’d sought to unseal. In an opinion only five pages long, the court deemed paramount the government’s interest in “preserv[ing] the secrecy of law enforcement techniques in [federal] wiretap cases.” Troublingly, the court found that “[t]he materials at issue in this case concern techniques that, if disclosed publicly, would compromise law enforcement efforts in many, if not all, future wiretap investigations.” It’s not clear what “techniques” this means. Surely “not all future wiretap investigations” will involve end-to-end encryption or forcing companies to break it. And, as I said in my earlier post, “Wiretaps for phone calls are nothing new.” It’s no secret that the government wiretaps investigatory targets’ communications—or even that it has tried to eavesdrop on end-to-end encrypted communications services (specifically WhatsApp, another Facebook product). So it’s hard to imagine what “techniques” could be so fundamental that they implicate all wiretaps, and yet simultaneously have somehow totally eluded public awareness of their existence.
The court also found that redaction was not an option because even the limited information we sought was “so entangled with investigatory secrets that effective redaction is not possible.” That argument is a little hard to understand: there have been other cases, such as In re the Company (which involved the same technical-assistance provision at issue here) and the Lavabit case, where the government sought to compel technical assistance from a communications service provider. In those cases, the courts were able to issue publicly-available opinions even though some information therein, as well as other parts of the record, remained sealed. (The official name of Lavabit case is In re Under Seal.)
This is a very frustrating ruling, and I’m still thinking over what to do about it. Important public interests—in communications privacy, in providers’ freedom to give their users the best possible security, in access to the courts, in public oversight of police techniques—are at stake here. This case is just one part of a larger push to improve public access to sealed court records. As the year of court transparency continues, I’m hoping to cast more light on courts’ surveillance matters, and for that sunlight to turn this winter of our discontent into glorious summer.
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