The Ninth Circuit Court of Appeals has rebuffed my attempt to unseal information about the Department of Justice's unsuccessful secret effort to force Facebook to change the encryption of its Messenger app so that it could wiretap criminal suspects' voice calls. Following press reporting about the case in the summer of 2018, I joined the American Civil Liberties Union and the Electronic Frontier Foundation in filing a motion to unseal certain parts of that sealed matter (principally the court's opinion and the case's docket sheet). We appealed after an adverse decision by the district court last spring. Today, in a two-page-long unpublished memorandum disposition, the appeals court affirmed the district court's decision. Since the district court's thinly-reasoned opinion was barely over four pages long, it is impressive that the Ninth Circuit managed to render an even shorter decision, particularly about such important issues.
This case isn't just about the public's ancient rights of access to the courts. It's about the pervasive and urgent questions of how the government tries to compel private tech companies to assist it in surveilling their users, how it seeks to use the courts to forcibly undermine the integrity of strong encryption in pursuit of those surveillance goals, and what legal arguments and authorities it relies on when doing so. The Ninth Circuit's decision today means the answers to those questions will continue to be shrouded in mystery, at least in the context of this case. We may never know just what the DOJ tried to make Facebook do to Messenger's encryption, on what legal grounds, or why the court rejected the government's request.
The only small mercy is that, by declining to publish its decision, the court refrained from affirmatively making bad law that carries the force of precedent. The unpublished memorandum will therefore be of limited utility to the government going forward in any future efforts by the press and the public to gain access to sealed surveillance matters once the need for secrecy has passed.
My disappointment in the Ninth Circuit's decision is tempered by the recent victory in another case about unsealing sealed surveillance dockets. Two weeks ago, after seven years of litigation, journalist Jason Leopold and the Reporters Committee for Freedom of the Press were vindicated by the D.C. Circuit Court of Appeals, which reversed the district court's denial of any public right of access to certain sealed surveillance matters. The district court had reasoned that it would just be way too much work for the court to respect that right. In its (published!) opinion, the D.C. panel reaffirmed unambiguously that "[p]roviding public access to judicial records is the duty and responsibility of the Judicial Branch." The court went on, "Precluding public access because of the personnel-hours required to produce those records is no more warranted than precluding public access to high-profile trials because of the costs of crowd control." With these strong words, that case now goes back to the district court to continue the vital work of shedding light on what my colleague, retired federal magistrate judge Stephen Wm. Smith, has called "the most secret court docket in America."
I wish the district court here in Northern California had been commanded to do the same. Nevertheless, congratulations to Jason and RCFP for this well-deserved win. The fight continues.