Senate Inches Closer To Providing Free Access To PACER

from the years-late-but-better-than-never dept

Might a free PACER finally be on the horizon? For years, activists and a handful of Congressional reps have attempted to strip the fees from PACER, the federal court system's antiquated database that provides online access to court documents.

The antiquation doesn't begin with the fees. The system is outdated and hasn't improved much over the years, despite the fact that PACER regularly turns a profit. PACER looks and performs like a holdover from the 1990s. The UI is its own barrier to entry. The search function barely functions, vacillating between drawing a blank or producing several pages of irrelevant search results.

And that's where the fees kick in. PACER operates like a library copy machine, charging users $0.10/page for everything. Search results and dockets are treated like they're being printed out at the central PACER desk. Useless search results are $0.10/page. So are dockets, which may or may not contain the documents. These fees add up before users even locate the documents they're looking for. Those documents are also $0.10/page to download in PDF form, putting price on ones, zeroes, and the fractions of cents needed to generate, store, and transmit the documents.

The US Courts System has blown PACER profit on in-court niceties like new TV screens and furniture. Almost none of the millions PACER generates has gone towards improving PACER itself or lowering access fees. The federal court system has argued it will cost billions to overhaul PACER and provide free access to users.

But according to the Congressional Budget Office investigation and former government technologists, the actual outlay for an improved, free PACER is much less. The CBO says free access would only cost about $1 million a year. Technologists estimate the overhaul would only cost $10-20 million and require less than $5 million a year to maintain.

These facts helped push a bill mandating free access to PACER through Congress late last year. But that's only half the battle. And it's the far easier half of the battle. The Senate still needs to create and pass its own version, meld that with the House of Representatives offering, and drop a cohesive bill on the President's desk.

Well, we're one step closer to that happening, as Nate Raymond reports for Reuters.

A U.S. Senate panel on Thursday advanced a bipartisan bill that would overhaul the federal judiciary's PACER electronic court record system and make the downloading of filings free for the public through the elimination of costly fees.

The Senate Judiciary Committee voted to send the Open Courts Act of 2021 to the full Senate for its consideration after adopting an amendment that provided for additional funding and addressed the judiciary's concerns on technical issues.

The panel approved the measure on voice vote without any recorded opposition, and in a sign of the bill's support, nearly all of the committee members elected to co-sponsor the legislation by the end of the hearing.

The Administrative Office of the US Courts is still pretending this is far too expensive to accomplish. According to its statement to the Senate, it remains committed to modernizing PACER (which clearly isn't true) and thinks it will run out of money if people who've already paid once for the creation and storage of these documents aren't forced to pay again for access to them.

The Senate bill [PDF] would force the court system to do the thing it pretends it's been doing for years: overhaul the outdated PACER system. To help pay for these initial costs, high-volume users (those accessing more than $25,000 in dockets and documents quarterly) would still be charged PACER fees. For everyone else, it would be free.

The bill is still a few steps away from passing but free access to PACER is closer than it's been in years. And there's really no reason the government needs to continue charging taxpayers for access to documents they've already paid for. One wonders why the federal courts are so resistant to this change, considering the only thing at stake here is other people's money. Free access will still be taxpayer-funded. All this means is the court system won't have as large a slush fund to spend on office furniture and TVs -- items that do nothing to improve public access to court documents, which was the point of PACER all along.

Filed Under: congress, courts, fees, pacer, transparency

LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

from the that's-not-how-copyright-works dept

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).

Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

“Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” read the announcement, which also detailed the rolling back of other COVID-19 protocols. “The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court’s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.”

As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, “Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.”

When asked what is the court’s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: “Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.”

But... notice what is not included in the list of potential liabilities? Copyright. That's because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it's difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act's prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

And so I understand why the court doesn't want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That's copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn't mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

Filed Under: britney spears, copyfraud, copyright, courts, recordings, takedown
Companies: youtube

House Passes PACER Bill As Budget Office Says It Will Cost Less Than $1 Million A Year To Provide Free Access To Court Documents

from the court-system-seems-to-have-embraced-Hollywood-accounting dept

We're one step closer to free access to federal court documents. The House has passed the Open Courts Act of 2020, moving it on to the Senate, which will decide whether the bill lands on the president's desk.

Yes, this sort of thing has happened before. And previous efforts have always died on their way to the Oval Office. But this one might be different. A growing collection of case law says the US Courts system has been overcharging users and illegally spending funds meant to improve the PACER system and, yes, lower the cost for users.

This latest effort has a bit more momentum than its predecessors. And that seems to worrying the US Courts, which has fought back with dubious assertions and even more dubious budget estimates. The court system claims it will cost at least $2 billion over the next several years to overhaul PACER and provide free access to documents. Experts say it will cost far less.

A group of former government technologists and IT experts dispute that figure. In a letter sent last week to the Judicial Conference of the United States, the group estimated the cost of a new system would be $10 million to $20 million over 36 months to build the system and between $3 million and $5 million annually to maintain and develop.

Even more damning is the Congressional Budget Office's estimate. According to its report, fixing the system and providing free access to most users would cost less than $1 million a year.

On net, CBO estimates that enacting H.R 8235 would increase the deficit by $9 million over the 2021-2030 period.

The report says overhauling the system will cost around $46 million. But that will be offset by fees the court system will be able to collect from "high-volume, for-profit users," which the CBO estimates to be about $47 million over the same period. After subtracting some expected revenue declines and indirect tax effects, the court system should net about $37 million over the next decade.

That should end the debate over cost but it probably won't. For whatever reason, the court system continues to insist giving citizens free access to court documents would bankrupt the system. If it can find allies receptive to its bad math in the Senate, it could end this bill's run.

But no one but the court system agrees with the court system's math. It's not just potential beneficiaries of free access providing much lower cost estimates. The government itself disagrees with this branch's budgetary suppositions. Hopefully, the CBO and the tireless work of transparency advocates will finally push free PACER past the Senate and onto the president's desk.

Filed Under: access to courts, congress, courts, judiciary, open courts act, pacer, transparency

US Courts Rep Ignores Everything About The Internet, Says PACER Access Can Never Be Free Because It Costs Money To Operate

from the LOGICAL-FALLACY-BONANZA dept

Open access to court documents is something we still don't have, thanks to PACER. The creation of PACER was supposed to increase public access, but the government erected a paywall between the public and the documents. To make things worse, the PACER's front end is an antiquated nightmare. The system isn't consolidated, so people seeking documents need to know exactly where it was filed before they can even start paying $0.10/page for unhelpful search results.

No one who uses PACER likes it. But it's the government's monopoly, so everyone who uses PACER has to use PACER because there is no alternative. The US Court system rakes in $150-200 million a year in fees, but hardly any of that money is being put towards fixing a system that only barely works and does so in the most begrudging way possible. Lawsuits have been filed and legislation proposed that would give the public free access to court documents, but so far, nothing has changed. PACER is still expensive. And it still sucks.

The sad state of PACER was discussed during a recent Congressional hearing. And it was defended in the worst way possible by the Judicial Conference's speaker.

Judge Audrey Fleissig of the U.S. District court for the Eastern District of Missouri also said in testimony for the House Judiciary Committee’s Subcommittee on Courts, IP, and the internet that shifting costs away from users without another funding plan would burden courts with new costs.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig said. “That money must come from somewhere.”

Everything about Fleissig's statement is ridiculous.

First and foremost, just because something costs money to operate doesn't mean it can't be free. To use a government example, interstate highways are free to use, yet they cost billions to construct and maintain. ($96 billion in 2014 alone.) The money does come from "somewhere," as Fleissig correctly notes. It's called taxes. The thing about PACER is its funded by both tax dollars and fees. The documents people pay to access are created with tax dollars that pay judges, clerks, and every other government employee involved in creating, processing, and posting documents citizens are then expected to pay $0.10/page to download.

Stepping outside the government, there are countless examples of free services that cost money to run, like Google's search engine… or the numerous browser options people use to run Google searches. Every search engine (and I'm including Bing here) runs better than PACER's internal search engine. And none of those charge users $0.10/page for search results. And then there's email, cloud storage, social media platforms, web-based apps, job-hunting services, classified ad sites, blogging platforms, mobile games, YouTube... a whole internet full of free services that cost money to create and support -- all at no cost to the user.

But that's only part of the ridiculousness. Insisting that it takes $100 million to run PACER is bogus. The US Courts system may spend $100 million doing it but that doesn't mean it couldn't be done more efficiently for less money. A bureaucracy claiming it spends every cent of its budget doing something shouldn't be taken as evidence said thing actually requires that much funding to accomplish. Government budgets are things to be spent, not areas of concern where less-costly options might be explored. The process does not lend itself to efficiency since the only thing that accomplishes is less money being appropriated in the next fiscal year.

While there are the salaries of support staff to consider, the bulk of the claimed expense is processing and hosting of PDFs and digital court dockets. The internet is built for this kind of thing and there are any number of options that would reduce costs and increase user-friendliness… all while giving away PDFs and docket listings for free. The system doesn't necessarily need to be privatized, but perhaps it should be outsourced to vendors that specialize in all the problems PACER has failed to solve for nearly two decades.

And here's another partial solution -- one inadvertently stumbled upon by the US Courts itself:

Approximately “87 percent of all PACER revenue is attributable to just 2 percent of users—large financial institutions and major commercial enterprises that aggregate massive amounts of data for analysis and resale,” the Administrative Office of the U.S. Courts said.

Well, if that's the case, the largest users can subsidize everyone else. Set a monthly cap of 5,000 pages and let those who need more pay for unlimited access. It seems like the top 5% of users could easily guarantee free access for everyone. And if anyone else wants "value-added" access to the court document system (maybe with some sort of fire hose feed), they can pay for it. Those that just want to find relevant case documents can still muddle their way through PACER's broken system to find them, all without having to pay the government for documents they still haven't managed to find yet.

Filed Under: courts, fees, internet services, pacer, public access, transparency, us courts

Court Rejects Plaintiff's Attempt To Seal His Entire Lawsuit Against A Website That Publishes Court Documents

from the burial-failure dept

Eugene Volokh has come across another attempt by a litigant to bury his own court proceedings. This isn't a malicious or underhanded attempt to remove embarrassing info from the court system in order to... say... scrub a client's reputation. This is simply a pro se litigant perhaps misunderstanding what he was getting into when he decided to start filing lawsuits.

As Volokh points out, knowing very little about the court system you're engaging with as your own lawyer tends to result in very strange requests.

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it.

In this case, the plaintiff asked for pretty much every public document his lawsuit had created to be sealed. He did this with a letter to the court [PDF] that closes with:

Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source.

This letter was (of course) added to the docket and made accessible, just like everything else in his 2017 lawsuit against his former school. The letter asks for the judgment to not be published by the court and the only copies distributed to him and the defendant. He also wanted the defendant to be blocked from publishing the judgment or sharing it "with anyone or website or other conduit."

This was construed as a motion to seal. Volokh spotted it and filed a motion to intervene to argue on behalf of the public's right to access documents created by public courts. The natural course of things -- the generation of documents by courts that then end up on third-party websites -- resulted in a second lawsuit from the same plaintiff. This was filed against Justia, a site that publishes thousands of court documents.

Volokh's intervention is noted by the court, which comes to the conclusion that it probably would have reached anyway. But, as Volokh noted earlier, sometimes trial courts head to left field and grant some really strange stuff to plaintiffs. Hence the outside input meant to steer the court back in the direction of the presumption of openness.

The decision [PDF] here hits all the right notes. Documents filed in public courts are public. Not wanting them to be public is understandable in some cases, but that's not the standard the court uses when dealing with motions to seal. Even for pro se plaintiffs, who are given as much leeway as possible by courts, the standards are higher than can be met by the plaintiff's letter.

The party seeking to seal must provide “legitimate public or private reasons for the documents to be kept from the public” and must identify “a clearly defined and serious injury that would result if the motion is not granted.” Celgene Corp. v. Abrika Pharm., Inc., 2007 WL 1456156 at 5 (D.N.J. May 17, 2007). Plaintiffs request to seal the Appellate Division’s Opinion has numerous deficiencies:

1. He has not filed any affidavit, declaration, certification, or other document along with his request.

2. He has not presented any compelling reason that would justify the Court granting the request.

3. He has not suggested any lesser restrictive measures or why one is not available.

4. He has not set forth a significant reason that would warrant sealing these documents and restricting public access.

5. Plaintiff merely expresses his wish that the order on his motion to dismiss not be “reported, copied, distributed, shared, or by any other means used by anyone or any website.” (ECF No. 26).

6. Plaintiff has failed to establish what adverse consequences would occur, unless sealing has occurred.

On top of this denial, the court also dismisses the lawsuit against Justia. And again, the ruling rests on court system's presumption of openness.

The amended complaint is substantively meritless, as was the original complaint. Plaintiff is essentially attempting to seal the Appellate Division’s Opinion, which — like federal court documents — are open to the public. N.J. Ct. R. 1:38-1. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret.

And, finally, the court addresses the claims the plaintiff actually made in his lawsuit against Justia. And they're as creative as they are unsupported.

[T]here is no cognizable legal theory to support the allegations set forth herein. The documents alleged to have been stolen and embezzled are public records with access for the public. In addition, even assuming that the records were not public, there are no allegations to support a claim for theft or embezzlement — the Appellate Division’s Opinion is not Plaintiff's personal property.

Away goes the lawsuit in a brief opinion that's as public as everything else in the case.

I'm sure it sucks for the plaintiff to be shot down again. And in public. (Again.) But that's how the system works. The plaintiff probably should have quit when he was behind -- after his failed attempt to seal documents from his first lawsuit. As courts have pointed out in the past, the best way to keep your name out of court documents is to stop filing lawsuits.

Filed Under: courts, public documents, sealed records, transparency

After Five-Year Legal Battle, Top Judges Rule That The UK's Spying Activities Can Be Challenged In Ordinary Courts

from the if-at-first-you-don't-succeed dept

The digital rights group Privacy International has won a major victory against UK government surveillance after a five-year legal battle. One of the many shocking revelations of Edward Snowden was that the UK security and intelligence services break into computers and mobile phones on a massive scale. Privacy International challenged this "bulk" surveillance at the UK's Investigatory Powers Tribunal (IPT), the "judicial body which operates independently of government to provide a right of redress for anyone who believes they have been a victim of unlawful action by a public authority using covert investigative techniques". In February 2016, the IPT dismissed Privacy International's challenge, ruling that:

the UK government may use sweeping 'general warrants' to engage in computer hacking of thousands or even millions of devices, without any approval from by a judge or reasonable grounds for suspicion. The Government argued that it would be lawful in principle to use a single warrant signed off by a Minister (not a judge) to hack every mobile phone in a UK city -- and the IPT agreed with the Government.

In May 2016, Privacy International challenged the IPT's decision in the UK High Court, which agreed with the UK government's position that Tribunal decisions were not subject to judicial review. So Privacy International turned to the Court of Appeal, in February 2017. In November 2017, the Court of Appeal dismissed the move, finding in favor of the UK government once more. Undeterred, the digital rights group applied for and was granted permission to appeal to the UK's Supreme Court, which has now ruled that IPT decisions can indeed be challenged in the courts (pdf). Caroline Wilson Palow, Privacy International's General Counsel, explains why that's important:

Today's judgment is a historic victory for the rule of law. It ensures that the UK intelligence agencies are subject to oversight by the ordinary UK courts. Countries around the world are currently grappling with serious questions regarding what power should reside in each branch of government. Today's ruling is a welcome precedent for all of those countries, striking a reasonable balance between executive, legislative and judicial power.

The hope is that other countries will take note of the UK Supreme Court ruling, and follow suit by allowing judicial oversight of national surveillance activities. Privacy International intends to take advantage of the new judgment immediately to tackle the UK's bulk surveillance revealed by Snowden:

Today's ruling paves the way for Privacy International's challenge to the UK Government's use of bulk computer hacking warrants. Our challenge has been delayed for years by the Government's persistent attempt to protect the IPT's decisions from scrutiny. We are heartened that our case will now go forward.

As well as a welcome result in itself, Privacy International's ultimate victory after a string of legal defeats is a useful reminder that persistence and patience are important virtues for activists.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: courts, ed snowden, privacy, spying, surveillance, uk
Companies: privacy international

Stupid Battle Over YouTube Subcribers Now Includes A Takedown Order From A Court In India

from the courting-subscribers dept

One of the stupidest fights over internet points has reached its latest nadir. It's nadirs all the way down, tbh. If you're interested, there's an entire Wikipedia page with a blow-by-blow of YouTuber PewDiePie's fight against Indian content conglomerate, T-Series. It starts with subscriber counts and ends with a court order. In between, there's racism, hacked printers, billboard purchases, invective of all varieties, and this salvo from the controversial PewDiePie: a "diss track" called "Bitch Lasagna."

If you're inclined to click through and assail yourself with "Bitch Lasagna," you'll be greeted with some of the worst white boy rapping since white boys started rapping. Robert Van Winkle is rolling over in his grave. [Note: My apologies to all of us: I've been informed Mr. Van Winkle is, unfortunately, still alive.] Contained in this video are some slurs against the country of India and its inhabitants -- not all that unexpected for a diss track.

What's a little more unexpected is how far T-Series will go to up its subscriber count and fan the flames of this meaningless -- but lucrative -- battle over numbers in a little red box. There's now a court involved.

Delhi HC has ordered the removal of PewDiePie’s diss tracks against T-Series namely ‘Congratulations’ and ‘Bitch lasagna’, Bar and Bench reports. YouTube has also been ordered to see that these videos are not uploaded on the platform again. If you search for either of the videos on YouTube, you will see that they are not available in India.

[...]

The High Court was of the opinion that the songs have “repeated comments made which are abusive, vulgar and also racist in nature,” according to the report. The matter is currently pending in the Delhi High Court and the next hearing will take place on July 15.

The court isn't wrong. The video contains all of those elements. But this isn't really about someone offending a country with over 1 billion residents. It's about who has the higher subscriber count. By geofencing PewDiePie out of India, T-Series can hope to grab the lead for good. This is a race to the bottom and T-Series has taken the lead by using the power of the government to nuke a competitor's video.

But I'm sure -- given enough time -- PewDiePie or his supporters will find a way to "top" this. Taking control of unsecured devices and vandalizing war memorials is just part of the stupid, stupid game being played here.

Filed Under: courts, diss tracks, india, pewdiepie, subscribers, vulgar language
Companies: t-series, youtube

Multiple Parties (Including The Author Of The Law Governing PACER) Ask Court To Stop PACER's Screwing Of Taxpayers

from the 'free'-as-in-'open,'-but-also-as-in-'no-cost' dept

The US government is either going to end up giving the public free access to court documents via PACER or find a group of legislators willing to extend a middle finger to the public by codifying the ridiculous fees charged to digitally access supposedly public documents.

The government has been sued over PACER fees on multiple occasions. One lawsuit alleged that PACER is miscalculating page lengths on dockets, resulting in thousands, if not millions, of dollars of overcharges. Another lawsuit -- currently awaiting review by the Federal Circuit Court of Appeals -- argues PACER fees are excessive and violate the law that governs PACER's existence.

The E-Government Act says PACER fee intake should not exceed the cost of running the system. But as Matt Ford points out for The New Republic, PACER has an incredible profit margin.

The statute authorizes the judiciary to levy fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” Though data storage costs have plummeted over the past two decades, PACER’s fees rose from seven cents a page at its establishment to ten cents a page by 2011, which remains the cost today. That may not sound like much, but it adds up fast. The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.

This isn't how the system is supposed to operate. This single phrase in the E-Government Act has prompted more than a few lawsuits. And it's usually met by the government claiming that isn't what the law means when it's not arguing screwed PACER users don't have standing to sue over PACER screwing.

In addition, the fees are supposed to used only for PACER-related stuff. The money is getting spent, but very little of it is directed towards modernizing the archaic online system or finding a way of lowering access costs. Instead, millions of dollars are going to things that don't appear to be authorized by the law, like touchscreens for jurors or other courtroom tech.

The government continues to argue the law should not be read so narrowly, but it's going to be facing a lot of opposition in this appeal, including an amicus brief written by the E-Government Act's author.

In his friend-of-the-court brief, [former Senator Joe] Lieberman argued that the lower court had misinterpreted the law and its intent. He speaks with some authority on the matter, having introduced the Senate’s version of the E-Government Act and overseen its passage as a committee chairman. In his filing, Lieberman warned that excessive PACER fees would “impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents.”

In addition to Lieberman, the list of amici includes dozens of journalistic entities and former judges Richard Posner and Shira Scheindlin -- the latter most famous for dismantling the NYPD's unconstitutional stop-and-frisk program. The Knight First Amendment Institute and the Free Law Project (part of the RECAP project, which mirrors paywalled court documents for free) have also submitted briefs arguing for a stricter interpretation of the law and free access to documents already paid for once by the taxpayers who fund the court system that creates the documents.

If they prevail, the government's going to be greeted by a long line of taxpayers expecting refunds. The system in place now is needlessly expensive. The cost of accessing court documents should be $0 for all taxpayers -- especially since the portal handling requests looks and acts like it cost roughly that much to get up and running. Overcharging and under-delivering is something the government does well, but that doesn't mean we should be expected to sit there and take it.

Filed Under: courts, fees, joe lieberman, pacer, us courts

Seattle Newspaper Wins Federal Court Case, Opens Up Reporting On Secret Law Enforcement Surveillance

from the right-to-know-meets-code-of-silence dept

Late last year, a Seattle newspaper petitioned the court to unseal dockets related to electronic surveillance by law enforcement. The position was clear: the First Amendment provides citizens with a right to information, hence the presumption of openness that's supposed to govern court proceedings. The government has long argued the need to protect law enforcement means and methods outweigh the public's right to know, and has secured a lot of compliance from judges at all levels of the court system.

In recent years -- no doubt at least partially as a result of the Snowden leaks -- courts have begun pushing back. Warrant affidavits are receiving more scrutiny from some judges and litigation has resulted in courts agreeing to unseal large numbers of proceedings involving law enforcement surveillance tech.

The Seattle case deals with the same concern: law enforcement is increasingly deploying secretive tech and locking the public out of the discussion by sealing documents and dockets. The good news is the federal court presiding over the case agrees with the EFF and The Stranger, the Seattle publication that put the litigation in motion.

In response to The Stranger’s petition, the United States Attorney’s Office for Western District of Washington and the Clerk of the Court have launched a new pilot program for tracking these surveillance tools. The court is now collecting data each time one of these surveillance tools is used and will publish that data in semi-annual reports. These reports will include the case numbers and the principle crime being investigated every time the government asks to use one of these surveillance methods, giving the public in Seattle an unprecedented understanding of how investigators spy on Americans.

This isn't as broad as the unsealing ordered by the court following a lawsuit by Jason Leopold, but it's a start. It appears filings will still remain under seal, but at least the public will have some idea how often surveillance tech is deployed by local law enforcement as well as what case numbers to target in future First Amendment-based litigation.

The first report won't be available until 2020 and, unfortunately, won't be retroactive. It will only affect cases brought from 2019 forward. It also will remain in operation at the US Attorney's discretion, which means it could be shut down anytime after its two-year trial run.

But we'll take what we can get for now and hope the US Attorney sees the value of partial transparency, rather than just the limited downsides law enforcement will likely complain about repeatedly. It's a big win for The Stranger, which has been instrumental in exposing legally-dubious surveillance programs rolled out by the Seattle Police Department.

In 2013, Brendan Kiley and Matt Fikse-Verkerk’s reported on a then-secret wireless spying network that the Seattle Police Department (SPD) had installed in downtown Seattle. Six days after the story was published the department deactivated the network. In 2016, Ansel Herz uncovered a secret, and illegal, SPD software program that lets them snoop on people’s social media feeds.

This is the sort of thing that happens when the public is locked out of the conversation, whether it's by city government officials failing to fulfill their oversight duties or judges obliging law enforcement every time they ask for public courtroom filings to be taken out of the public's hands. Less transparency equals less accountability, and the government has repeatedly shown it will exploit holes in public knowledge to engage in shady surveillance tactics.

Filed Under: courts, law enforcement, surveillance, transparency, warrants, washington
Companies: the stranger