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ACLU | A Partial Victory For Judicial Transparency

Judge with gavel

A Partial Victory For Judicial Transparency

By Bennett Stein, ACLU Speech, Privacy, and Technology Project at 12:55pm
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In a partial victory for the public’s right to access and scrutinize court proceedings, a federal judge recently made public most of two previously sealed opinions authorizing gag orders on Twitter and Yahoo to prevent the companies from disclosing grand jury subpoenas demanding some of their subscribers’ records.

In a democracy governed by the rule of law, we cannot allow our courts to resolve controversial legal questions about executive power and the constitutional rights of citizens in secret. And yet that is what the government wanted a court to do in this case.

This case began when the government requested gag orders from a magistrate judge, attempting to bar Twitter and Yahoo from informing their customers about certain grand jury subpoenas seeking those customers’ information. The magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments—but not any sensitive facts—public. The government appealed the magistrate’s orders to a district court, where the judge, while recognizing that its opinions address several important legal issues, ordered the appeals sealed because they related to a grand jury investigation.

The ACLU filed a motion seeking to assert the public’s right to open court proceedings and, in particular, to the legal arguments advanced by the government in its attempt to obtain gag orders on Internet companies receiving subpoenas for their customers’ records. The judge ultimately agreed with the government, issuing two sealed opinions authorizing the government’s requested gag orders. The ACLU filed a second motion to unseal these opinions and the accompanying orders. We argued:

Because the judiciary’s very legitimacy stems from its issuance of reasoned decisions, documents authored or generated by a court, such as court orders, have long been considered core judicial records subject to the most stringent requirements of public access. Because courts determine what the law means—and therefore what the law is—the societal need for access to judicial decisions is paramount.

Last week, we participated in a sealed hearing on this issue. In response to sealed arguments made in our motion and at the sealed hearing, the judge ordered his two opinions unsealed. Although he allowed the government to redact information relating to its investigation, the government redacted parts of only a single sentence in each opinion. The rest of the opinions explained the court’s ruling on several important and unsettled legal issues, such as the proper standard of review to be applied to the magistrate judge’s decisions, the participation of Internet service providers in gag order proceedings, and the government’s statutory authority for its requested gag orders. Those important rulings would never have seen the light of day without the ACLU’s intervention.

This shows, once again, that routine sealing of judicial opinions is both unnecessary and inappropriate. Sensible redaction—which enables crucial public scrutiny of judicial decisions without compromising government investigations—should be the rule. That is especially the case where (as here) courts must resolve controversial legal questions.

Of course, just unsealing an opinion is not enough. The ACLU sought the publication of these opinions to learn why a federal magistrate judge had expressed concern about the government’s legal arguments. Troublingly, the unsealed opinions do not answer that question. The opinions offered neither an analysis of the facts nor a response to the legal questions raised by the magistrate judge. Our constitutional rights are at risk when the government silences tech companies without meaningful, public explanation, from either the government or the court issuing the gag orders. Nonetheless, the public filing of the judge’s opinions is an important first step in allowing the public to do this type of analysis.

The court has not yet acted on the ACLU’s motion to unseal the government’s original requests for these gag orders, or its appeals from the magistrate judge’s orders inviting Yahoo and Twitter to file legal briefs on those requests.

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