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Bringing the Fight for Court Transparency to the Ninth Circuit

You may recall that in February, a federal district court in Fresno denied a petition I filed with the American Civil Liberties Union, the ACLU of Northern California, and the Electronic Frontier Foundation to attempt to shed light on the Department of Justice's attempt to force Facebook to break the encryption on its Messenger app for encrypted voice calls so that Facebook could carry out a wiretap order the DOJ had obtained. Everything in that matter is sealed; all we know about it has come from reports in the press. The court perpetuated that secrecy with its February denial of our request that it unseal the court's sealed opinion, the case docket sheet, and certain other materials. 

We appealed that denial to the Ninth Circuit Court of Appeals, and last week we filed our opening brief, explaining to the appellate court that there is ample precedent for court opinions and case docket sheets (among other materials) to be open to the public. That does not change just because the DOJ's motion to compel Facebook arose from an underlying wiretap order (which is typically afforded greater secrecy). The district court painted the proceedings with too broad a brush, treating these traditionally-public materials as being indistinguishable from sensitive information that might properly stay secret under the Wiretap Act.

There's a lot at stake in this case. It is vital for the public to know about law enforcement efforts to subvert the encryption on communications services such as Messenger, which is used by over a billion people worldwide. I'm pleased that no fewer than four amicus ("friend of the court") briefs were filed to help the court understand why this case matters so much. My thanks to those amici:

  • The Reporters Committee for Freedom of the Press and 23 media organizations (brief; RCFP blog post here);
  • Mozilla and Atlassian (brief);
  • Former magistrate judges, including my CIS colleague Stephen Wm. Smith (brief);
  • Upturn and computer security experts Hal Abelson, Steve Bellovin, Matt Blaze, and Whit Diffie (brief, written by Stanford Law's own Juelsgaard Intellectual Property and Innovation Clinic).

I am so grateful to all of our amici for standing up to support our cause, and to the attorneys who wrote these excellent and useful briefs. I'm hopeful that on appeal, the Ninth Circuit will correct the district court's error and recognize that the records we're asking for can be safely unsealed (with redactions) without jeopardizing law enforcement investigations or anyone's privacy interests. Courts' opinions are the law, and the law must be public in a functioning democracy. That's no secret.

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