By Stephen Wm. Smith
Now that the cell phones in San Bernardino and Brooklyn have been unlocked (no thanks to Apple), FBI warnings about "going dark" in the face of advancing digital encryption seem less urgent than before. Perhaps there are other ways - buying exploits in the zero-day market, plea bargaining pressure - to skin the encryption cat, after all. Are privacy advocates correct that a "Golden Age of Surveillance" has arrived, and the real question is whether law enforcement has too many tools, rather than too few? Or will unchecked encryption enable criminals and terrorists to wreak havoc via the Dark Web, as Director Comey fears? Although an interested spectator, I am in no position to judge that technical debate.
I am, however, better positioned to ponder a less publicized "going dark" threat to another branch of government, the branch most indispensable to the rule of law - our court system. Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels. Let me describe what I have seen, and why it is troubling.
Secret courts, secret dockets
In 1978, Congress created the first secret court in our history - the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.
While the FISA court remains the only congressionally authorized secret court in our nation's history, secret dockets are another matter. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to our cell phone and Internet communications and records. This law authorized court orders compelling such access to be sealed indefinitely, "until further order of the court"; in practice, this has meant that these surveillance orders are permanently sealed. Moreover, these orders are routinely accompanied by gag orders forbidding the provider from telling customers that the government has read their emails or tracked their cell phones. (This has become a customer relations headache for providers like Microsoft, who sued last month to have ECPA's gag provision declared a prior restraint of speech in violation of the First Amendment.)
How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress. That is precisely the problem.
These breathtaking numbers have no precedent in our legal history. Before the digital age, executed search warrants were routinely placed on the court docket available for public inspection. The presumption was that the public should be able to monitor the level of governmental intrusion into the "persons, houses, papers, and effects" of its citizens. Apparently, that presumption does not apply to government intrusion upon our digital lives.
Secret cases, secret evidence
Still, the situation might be tolerable, if criminal investigations were the only area of rising judicial secrecy. But that is not the case.
The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak ("the parties wanted them sealed," "to protect physicians reputations," "to protect a party's credit rating") to non-existent ("17 pro se actions," "30 habeas corpus and prisoner actions," "33 forfeitures and seizures").
Equally concerning is what was omitted from the study - cases with highly redacted docket sheets, or a substantial number of sealed filings, were not counted at all. This is understandable, because the numbers would likely have been too large to tabulate in any meaningful way. In my experience on the bench, unwarranted sealing in civil cases has become rampant. Even the most mundane employment suit will have a docket sheet littered with "Sealed event" entries. Litigants must often be reminded that there is no unalienable right to a private trial in a public forum.
Given the prevalence of the practice today, one easily forgets how new it all is. For most of our history, records of judicial proceedings were always accessible to the public, a practice inherited from English common law courts. Limited exceptions only began to appear around the turn of the 20th century, mostly in divorce, adoption, or juvenile proceedings. In 1915, the Supreme Court first encountered a judicial sealing order, which Justice Holmes denounced as "a judicial fiat" having "no judicial character" and "in excess of the jurisdiction of the lower court" before granting a writ of mandamus to revoke it.
That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket. Another telling sign is that the government is far more aggressively (and successfully) asserting evidentiary privileges than ever before. This includes well-established privileges like state secrets, and brand new ones like the privilege for investigative techniques and procedures. Unsurprisingly, the brainchild behind this particular privilege was J. Edgar Hoover himself, the godfather of the "black bag" job and other illicit techniques. (The story behind this privilege is told here.) Hoover's privilege is often invoked to limit court testimony about technological tools routinely used by law enforcement, such as cell site simulators (Stingrays).
Privatized justice, boiling frogs
My concern is not merely that a velvet curtain is being drawn across wide swaths of traditionally public judicial business. Over the last 30 years, with Supreme Court enabling, much of that traditional judicial business has been outsourced to private arbitrators and non-public "dispute resolution" mechanisms. Employers, Internet service providers, and consumer lenders have led a mass exodus from the court system. By the click of a mouse or tick of a box, the American public is constantly inveigled to divert the enforcement of its legal rights to venues closed off from public scrutiny. Justice is becoming privatized, like so many other formerly public goods turned over to invisible hands - electricity, water, education, prisons, highways, the military.
I realize that each of these developments has its arguable upside. Within the judiciary itself there are many who believe that, for cost and efficiency reasons, judges should spend more time managing cases off the record than adjudicating them on the record. My concern is that, like a frog in water heated gradually to a boil, these incremental changes to our judicial system will eventually produce a profoundly unpleasant transformation.
Turn out the light, and then turn out the light?
Absent good public information about what courts are doing, justice and the rule of law are left groping in the dark. Yale Professor Judith Resnik accurately summarizes the stakes:
More elegant, perhaps, is the simple admonition added to the open court proviso of the New Jersey Provincial Charter in 1674: "Justice may not be done in a corner." Unfortunately, this may prove to be one ancestral pearl of wisdom that our generation carelessly threw away.
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