A nearly decade-long effort to unseal certain court records related to electronic surveillance ended late last month after a federal court issued a standing order that details the process for making the records publicly accessible.
BuzzFeed News investigative reporter Jason Leopold (then a reporter with VICE) originally sought to unseal the electronic surveillance records in the U.S. District Court for the District of Columbia in 2013. Reporters Committee attorneys joined the case in 2016 to help promote public access to these materials. The records sought include three kinds of court orders authorizing the use of powerful electronic surveillance tools in criminal investigations. These tools allow law enforcement to collect different kinds of electronic information, including metadata about a person’s phone calls or text messages and, in some cases, the contents of emails.
Two years ago, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard the case on appeal. Authoring the opinion, then-Judge Merrick Garland acknowledged the public’s right of access to judicial records as “a fundamental element of the rule of law.” The D.C. Circuit reversed an earlier district court decision and remanded the matter for further proceedings. The appeals court held that the district court incorrectly found that the “administrative burden” (how long it would take the government to make the materials publicly available) justified withholding the records.
In his opinion, Judge Garland wrote: “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.”
“Transparency is the foundation of our democracy. It’s really crucial that the public has as much information as possible whenever secret orders are being used,” Leopold said following the appeals court’s ruling. “Too much faith and trust has been put into the government, and this will give the public an opportunity to understand what the government is up to.”
Judge Garland’s ruling was just the first step toward making these electronic surveillance materials accessible to the public. Following the remand, the district court ordered the government to begin unsealing materials. The order required the government to apply redactions for what the court has deemed “personally identifiable information,” including names of investigative targets, phone numbers and email addresses.
In January, the district court issued a standing order establishing procedures for granting public access to the numerous government records, warrants and orders. The parties agreed to dismiss the case in late March, meaning that the standing order now governs how these materials are to be unsealed going forward.
“This case was one of the first of its kind seeking access to this type of material,” said Jen Nelson, a Reporters Committee senior staff attorney who spent years litigating the case. “We hope it will be a model for other courts that are evaluating this issue, that they will hopefully look to Judge Garland’s opinion favorably when making an analysis within their own circuits.”
*Samantha Reilly is a legal extern for the Reporters Committee for Freedom of the Press. She is currently a law student at the Northwestern Pritzker School of Law.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.