EFF's Newest Case: Why We're Helping to Unseal Court Records in Washington Federal Court

Consider this: Deputy Attorney General Rod Rosenstein has been going around talking about “responsible encryption” for some time now— proselytizing for encryption that’s somehow only accessible by the government—something we all know to be unworkable. If the Department of Justice (DOJ) is taking this aggressive public position about what kind of access it should have to user data, it begs the question—what kind of technical assistance from companies and orders for user data is the DOJ demanding in sealed court documents? EFF’s client The Stranger, a Seattle-based newspaper, has filed a petition with one court to find out.

What’s at Stake?

In a democracy, we as citizens deserve to know what our government is up to, especially its interpretation of the law. A major reason we all knew about the government using the All Writs Act—a law originally passed in 1789—to compel Apple to design a backdoor for the iOS operating system is because the court order was public. However, there are many instances where we may not know what the government is asking. For example, could the government be asking Amazon to turn on the mic on its smart assistant product, the Echo, so they can listen in on people? This is not without precedent. In the past, the government has tried to compel automobile manufacturers to turn on mics in cars for surveillance.

Beyond the All Writs Act, we need to know what kind of warrantless surveillance the government is conducting under statutes like the Stored Communications Act (SCA) and the Pen Register Act. For instance, under certain authorities of the SCA, the government can obtain very private details about people’s email records, such as who they communicate with and when, and that in itself can be revealing regardless of the content of the messages.

The privacy problems of these non-warrant orders is compounded by the secrecy associated with them. The government files papers asking for such orders under seal, giving the public no opportunity to scrutinize them or to see how many are actually filed with the court. The people deserve to know and we support The Stranger’s efforts to seek access to these records.

Of course, the government may have good reasons to prevent disclosure of surveillance orders as part of an ongoing investigation, but under the current regime, next to no information is available even for the existence of such requests, including how many are filed each year. There are ways to meet government’s priorities—by redacting the name of the suspect to avoid tipping them off, for instance—without sacrificing transparency and access to court records for the American people under the First Amendment.

The Specifics of the Case

Our client The Stranger is a Pulitzer Prize-winning newspaper with a history of covering stories that focus on law enforcement surveillance capabilities. In 2013, The Stranger was the first local media organization to report on the surveillance devices installed by the Seattle Police Department that were capable of tracking people’s digital devices around the city. Apart from local law enforcement, The Stranger also covers federal surveillance activities in the city of Seattle. For instance, it investigated Alcohol, Tobacco, Firearms and Explosives bureau’s operation of a network of sophisticated surveillance cameras in the city.

To better report on government surveillance capabilities, the newspaper is petitioning the federal court in Seattle—home to companies like Microsoft and Amazon—to unseal government requests for electronic surveillance orders and warrants filed with the Court.

As the petition points out, the current court procedures are inadequate and counter to the widely recognized presumption of public access and openness to U.S. court records. In the Western District of Washington, government applications for electronic surveillance warrants or orders are designated as Magistrate Judge (MJ) matters. But for warrantless surveillance orders, the cases are marked as Grand Jury (GJ) proceedings. By default, anything filed as a Grand Jury case is automatically sealed and completely inaccessible to the public. This is troubling.

Support EFF’s Transparency Work

EFF has a long history of fighting for transparency by representing clients in litigation or filing public records requests for state and federal records. If you’d like to show your support for this lawsuit, please support our work and donate today.

We would like to thank Geoff M. Godfrey, Nathan D. Alexander, and David H. Tseng of Dorsey & Whitney LLP in Seattle for co-counseling with us in representing The Stranger.