Reporters Committee attorneys represent journalist seeking to unseal surveillance orders

To the extent most members of the public have heard of the All Writs Act, it’s likely thanks to the statute’s role in the high-profile clash between Apple and the FBI over access to an encrypted phone that belonged to one of the San Bernardino shooters. There, the FBI sought to force Apple to write code that would undermine the phone’s security’s measures — but the Act has also played a more secretive role in other government surveillance efforts, as new litigation aims to reveal.

The Act, a version of which was first adopted in connection with the Judiciary Act of 1789, provides that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In other words, courts may issue orders that enforce other orders they already have the power to issue. That may sound commonsensical, but the statute’s scope has turned out to be a question of enormous importance and controversy when one of those orders is a warrant — and the federal government wants a third-party’s help in executing it.

Since the Apple/FBI conflict subsided, the spotlight on such “technical assistance” orders has faded. But the government certainly hasn’t stopped asking for them. Now, as the Reporters Committee’s Matt Kristoffersen has described, Reporters Committee attorneys are helping Forbes Associate Editor Thomas Brewster shed light on what else the Act has been used to do.

As Brewster reported last year, court records unsealed in a federal district court in Southern California reveal that the U.S. Department of Justice has successfully invoked the Act to require that Sabre, a travel technology company, engage in real-time, “hot watch” monitoring of individuals subject to active arrest warrants. In fact, the government has done so in at least four cases, but most of the details of those matters remain secret — and some aren’t publicly docketed at all. As a result, the public has no way of knowing the government’s basis for claiming this authority, no sense of the courts’ reasons for agreeing and no way to come to its own conclusion about either. That’s especially concerning given that these surveillance orders implicate location data, a category of personal information that the U.S. Supreme Court has emphasized is especially sensitive.

We think the public and the press have a right to see these court documents, which is why Reporters Committee attorneys are representing Brewster in petitioning federal courts in California, Pennsylvania and Washington state to release them.

While there’s very little case law that addresses the right of access to All Writs Act materials, the analysis should be straightforward. An All Writs Act order is like any other court order, an All Writs Act application is like any other motion asking a court for relief, and both the First Amendment and the common law generally guarantee the public’s access to those sorts of judicial records. As Judge Merrick Garland, now President Biden’s nominee for the role of attorney general, emphasized last year in another case litigated by Reporters Committee attorneys, that principle is “a fundamental element of the rule of law.”

In the absence of that kind of transparency, the government’s position on the scope of its authority under the All Writs Act remains — as it was during the Apple/FBI dispute five years ago — substantially unclear. We hope these matters will help shed some light soon: The Justice Department is scheduled to file the first of its responses to these petitions on Feb. 16.

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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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.