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A Partial Victory For Judicial Transparency

Judge with gavel
Judge with gavel
Bennett Stein,
勛圖眻畦 Speech, Privacy, and Technology Project
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May 21, 2014

In a partial victory for the publics 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 and to weigh in and the government to make its legal argumentsbut not any sensitive factspublic. The government appealed the magistrates 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 勛圖眻畦 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 governments requested gag orders. The 勛圖眻畦 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 meansand therefore what the law isthe 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 courts ruling on several important and unsettled legal issues, such as the proper standard of review to be applied to the magistrate judges decisions, the participation of Internet service providers in gag order proceedings, and the governments statutory authority for its requested gag orders. Those important rulings would never have seen the light of day without the 勛圖眻畦s intervention.

This shows, once again, that routine sealing of judicial opinions is both unnecessary and inappropriate. Sensible redactionwhich enables crucial public scrutiny of judicial decisions without compromising government investigationsshould 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 勛圖眻畦 sought the publication of these opinions to learn why a federal magistrate judge had expressed concern about the governments 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 judges opinions is an important first step in allowing the public to do this type of analysis.

The court has not yet acted on the 勛圖眻畦s motion to unseal the governments original requests for these gag orders, or its appeals from the magistrate judges orders inviting Yahoo and Twitter to file legal briefs on those requests.

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