Government can’t keep surveillance orders secret, district court rules in RCFP case

When the question of how far the government can go in commandeering private firms to assist surveillance exploded onto the public scene in 2015, high-ranking federal officials insisted that “democracies resolve such tensions through robust debate.” After the FBI’s bid to force Apple to decrypt the San Bernardino shooter’s iPhone fizzled without a judicial resolution, that debate petered out too. The government, though, never stopped using the All Writs Act to demand new forms of “technical assistance” — it just took its arguments behind closed doors instead.

In a blow to that strategy, the U.S. District Court for the Western District of Pennsylvania ruled this month that technical-assistance orders and applications are presumptively accessible to the public, even where the government claims it needs secrecy to protect ongoing investigations.

The decision comes in In re Application of Forbes Media LLC, a case we’ve described in this newsletter before, and one in which your newsletter writer is among the Reporters Committee attorneys representing Forbes and editor Thomas Brewster in their effort to  unseal an All Writs Act order and application that compelled a private company to help the government execute an arrest warrant. As Brewster has reported, an All Writs Act application briefly unsealed in the U.S. District Court for the Southern District of California in 2020 revealed that the government uses the Act to require that travel firms conduct “hot watch” monitoring in hopes of catching fugitives, including in the Pennsylvania case he and Forbes moved to unseal.

In a thorough opinion, Chief Judge Mark R. Hornak explained that a technical-assistance order “is a quintessential judicial record” that the public is generally entitled to see, because it reflects the exercise of the court’s power over a private party. And the same, he said, was true of technical-assistance applications, which the government files with the hope of persuading the court to act. Rejecting the government’s claim that wholesale secrecy was necessary to protect its investigation, Chief Judge Hornak noted that the records contain substantial information that “could not plausibly be used to identify any particular individual as a target of law enforcement efforts, or the specifics of those investigative activities,” but that the public was squarely entitled to understand — like the legal basis for the government’s bid to conscript the firm.

The ruling is a significant victory for transparency on an issue that’s rarely litigated; only a handful of courts have addressed the question, reaching conflicting results. As we’ve described before, two companion cases are currently on appeal before the U.S. Court of Appeals for the Ninth Circuit, where we argued for disclosure before a three-judge panel in August. A decision in that matter could come at any time. Under Chief Judge Hornak’s order, meanwhile, the government has until Dec. 23 to seek a stay of his decision in order to pursue an appeal.

We’ll keep you posted.

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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 RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.